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Author: 

Bryan 


J 


Enoch  Albert 


Title: 


The  mark  in  Europe  and 
America 

Place: 

Boston 

Date: 

1893 


MASTER    NEGATIVE   # 


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I 


Bryan,  Enoch  Albert,  1855^  1941 

The  mark  in  Europe  and  America ;  a  review  of  the  discussion 
on  early  land  tenure,  by  Enoch  A.  Bryan  ...  Boston,  U.  S.  A., 
Ginn  &  company,  1893. 

vi  p.,  1 1.,  164  p.    19^» 
Authorities :  p.  (157j-lG0. 


1.  Mark.    2.  Laud  tenure. 


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BOARD  OF  PUBLIC  EDUCATION. 

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I 


THE  MARK 


IN 


EUROPE    AND    AMERICA 


A  REVIEW  OF  THE  DISCUSSION  ON  EARLY 

LAND  TENURE 


BY 


ENOCH  A.  BRYAN,  A.M. 

PRESIDENT  OF  VINCENNES  UNIVERSITY,   INDIANA 


,,»      -J 


•    •- 

t    • 


^   » 


BOSTON,  IJ.S,A, 
GINN   &    COMPANY,    FUBlISHERS 

1893 


Due 


Copyright,  1893, 
By  ENOCH  A.  BRYAN,  A.M. 

ALL   RIGHTS   RESERVED. 


exchange 

MAY  1      1946 


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k  LIBRARY. 

PREFACE. 


-»<>•- 


BOTH  the  theoretical  and  the  practical  sides  of 
the  question   of  land-ownership  have,  of  late 
years,  occupied  a  prominent  place  in  the  discussions 
not  only  of  economists,  but  also  of  that  considerable 
number  of  persons  who  are  interested  in  economic 
questions.     An  important  chapter  of  this  discussion 
is    concerned   with    the    historical    development   of 
property  in  land,  and  this  has  turned  almost  entirely 
on  the  theory  of  the  Germanic  Mark  and  its  relation 
to  communal  ownership.     The  writer  of  this  essay, 
during  a  year  of  rest  from  his  regular  duties,  has 
been  able  to  take  advantage  of  the  ample  material 
afforded  by   Harvard  University  bearing  upon  the 
subject,  and  to  make  this  small  contribution  to  the 
further  consideration  of  the  problem. 

The  immense  influence  which  the  acceptance  of 
the  Mark  theory  must  have,  not  only  on  economic 
thought,  but  also  on  practical  legislation,  and  even 
on  legal  procedure,  was  probably  not  foreseen  by 
those  who  promulgated  it,  but  cannot  but  be  ap- 
parent to  one  who  will  at  the  present  day  give  it 


/ 


IRREG  UJ.AB_PAGINATION 


IV 


Preface. 


careful  consideration.  Already  the  advocates  of 
state  ownership  of  land  look  upon  it  as  affording 
that  very  necessary  support  to  their  scheme  —  an 
historical  basis.  At  no  distant  day  it  may  play  a 
yet  more  important  part  in  practical  politics.  It  is 
this  consideration  which  lifts  the  matter  out  of  the 
region  of  mere  antiquarian,  or  even  theoretic  inter- 
est, and  places  it  within  the  range  of  those  subjects 
upon  which  the  intelligent  reader  wishes  to  be 
informed. 

This  volume  presents,  chiefly,  a  sketch  of  the  his- 
tory  of  the  theory  during  the  past  forty  years,  and 
is  not  intended,  primarily,  as  a  presentation  of  the 
original  documentary  evidence,  though  the  author 
has  availed  himself,  so  far  as  possible,  of  the  original 
sources  of  information.  The  literature  of  the  sub- 
ject has  become  so  voluminous,  and  covers  such  a 
considerable  period  of  time,  that  it  would  seem  now 
to  be  worth  while  to  gather  up  the  scattered  threads 
and  attempt  a  connected  statement  and  criticism. 
The  attitude,  both  toward  the  evidence  and  toward 
its  discussion,  preserved  during  the  examination  of 
the  question  was,  in  so  far  as  possible,  characterized 
by  suspension  of  judgment.  But  the  author  is  not 
one  of  those  who  believe  that  the  scientific  investi- 
g;ator  must  never  reach  a  conclusion,  or  that  indiff er- 


Preface.  v 

ence  is  a  test  of  accuracy,  and  hence  he  has  not 
hesitated  to  give  expression  to  his  views  on  the  bear- 
ing of  the  evidence.  He  has  tried  to  avoid  the  error, 
into  which  some  writers  unconsciously  have  fallen, 
of  balancing  the  judgments  of  others  upon  the  evi- 
dence, and  inclining  with  the  majority  of  the  judg- 
ments rather  than  with  the  weight  of  the  evidence. 

In  dealing  with  the  American  evidence  for  the 
Germanic  mark   it   was    not    deemed    necessary  to 
enter   at   length    into    any   statement   of   historical 
facts.     Those  who  have  seen  fit  to  attach  so  great 
an  importance  to  supposed  traces  of  the  mark  in  the 
beginnings  of  American  institutions,  have  made  the 
public  their  debtor  by  bringing  to  light  many  inter- 
esting and  important  details  in  regard  to  the  early 
settlements.     The   conscientious   manner  in  which 
these  have  been  gathered  is  deserving  of  all  praise. 
But  the  question  of  the  connection  of  the  Germanic 
Mark  with  these,  rests  primarily,  on  the  question  of 
its  existence,  and  secondarily,  on  the  interpretation 
which  is  put  upon  the  facts  themselves.     Hence,  the 
present  discussion  has  been  confined  largely  to  the 
interpretation  of  data  which  are  the  property  of  all. 

While  it  cannot  be  hoped  that  this  brief  essay  on 
the  history  of  property  in  land  will  add  much  to  the 
work  of  the  historical  school  of  economists,  yet  it 


VI 


Preface. 


may  help  to  indicate  the  growing  interest  in  the 
United  States  in  that  broader  view  of  economic 
questions  which  the  new  school  has  done  so  much 
to  bring  about.  The  economic  history  of  recent 
periods,  or,  as  it  is  sometimes  styled,  applied  eco- 
nomics, has  with  us  rapidly  gained  a  prominent 
place  among  subjects  of  academic  instruction.  But 
the  advantage  which  the  study  of  earlier  economic 
history  derives  from  its  larger  perspective  cannot 
fail  to  be  observed;  nor  can  we  fail  to  see  how  the 
one  is  necessary  to  supplement  the  other,  and  how 
both  are  necessary  to  correct  and  render  more  real 
economic  theory. 

The  author  wishes  to  acknowledge  his  very  great 
obligation  to  Professor  W.  J.  Ashley,  of  Harvard 
University,  for  his  counsel  in  the  preparation  of 
this  volume.  It  is  due  to  his  encouragement  that 
it  is  offered  to  the  public. 

Cambridge,  Massachusetts, 
May  25,  1893. 


CONTENTS. 


CHAPTER  I.  PAGE 

The  Theory  of  the  Germanic  Mark 

CHAPTER  n. 

....    20 
Nature  of  the  Evidence 

CHAPTER  HI- 
Discussion  of  the  Earlier  Evidence 29 

CHAPTER  IV. 

DISCUSSION   OF  THE   LATER  EVIDENCE 

CHAPTER  V. 

lOI 

Summary 

CHAPTER  VL 

THE   MARK   AMONG   SAVAGES;   PREHISTORIC  AND  MODERN....    109 

CHAPTER  Vn. 

113 

The  Mark  in  America 

CHAPTER  Vni. 
The  Mark  in  Economic  Doctrine ^^^ 


. 


I. 

THE  THEORY  OF  THE  GERMANIC  MARK. 

AN  historical  hypothesis,  though  it  may  after  a 
time  prove  untenable,  possesses  at  any  rate 
the  merit  of  forming  a  central  point  for  investiga- 
tion and  discussion.  But  there  is  a  corresponding 
danger.  If  once  it  is  fixed  in  the  mind  and  accepted 
as  standing  for  a  reality,  subsequent  facts  are  inter- 
preted in  its  light  and  then  in  turn,  made  to  reflect 

light  upon  it. 

Whatever  may  be  the  final  word  in  regard  to  the 
essential  truth  of  the  theory  of  the  Germanic  Mark, 
it  must  be  confessed  that  that  theory  has  greatly 
stimulated  investigation  of  the  earlier  economic  and 
social  conditions  of  the  Teutonic  race.  Yet  much 
remains  to  be  done  to  complete  the  picture  of  our 
institutions  from  their  simple  tribal  forms  to  the 
complex  organizations  of  the  present  day.  The 
mere  mention  of  the  date — 1848  —  at  which  the 
theory  may  be  said  to  have  made  its  appearance, 
suggests  alike  its  strength  and  its  weakness.  It 
was  well-nigh  inevitable  that  when  Kemble,  in  that 
year,  gave  definite  form  to  the  "mark,"  he  should 


2         The  Mark  in  Europe  and  America. 


breathe  into  it  the  breath  of  freedom,  and  should 
throw  over  this  creature  of  the  distant  past  a  veil 
of  romance  which  some  cold-blooded  investigator 
must  surely  tear  away.  Still  if  the  thing  remains, 
the  elements  of  fancy  about  it  may  well  be  forgiven. 
The  same  tendencies  which  prompted  so  attractive  a 
theory  secured  for  it  a  ready  acceptance  on  the  part 
of  the  public.  When,  in  1854  and  subsequent 
years,  Maurer  ^  gave  to  the  theory  a  more  scholarly 
air  and  a  more  scientific  aspect,  all  the  elements 
necessary  for  its  acceptance  were  present.  And  it 
did  receive  practically  unquestioned  acceptance  for 
a  third  of  a  century,  the  whole  force  of  scholarship  in 
this  direction  being  expended  in  elaborating,  extend- 
ing, and  illustrating  the  theory  from  the  starting 
point  of  Maurer's  conclusions.  There  was  no  inde- 
pendent re-examination  of  the  whole  ground, 
Maurer*s  evidence  with  his  interpretation  of  it, 
being  not  only  accepted  as  conclusive  but  being 
also  made  the  basis  of  a  broader  application  of 
the  theory.  To  a  remarkable  degree  the  theory 
fitted  into  certain  great  social  movements  and  added 
to  them  the  charm  which  Aeneas  found  in  *  seeking 
again  the   ancient   mother/      The   social   reformer 


^  Georg  von  Maurer,  Einleitung  zur  Geschichte  der  Mark-, 
Hof-,  Dorf-,  und  Stadt-Verfassung.     1854. 


The  TJteory  of  the  Germanic  Mark.        3 

found  in  it  the  support  which  he  needed.     Democracy 
had  the  comforting  assurance  of  precedent.      The 
land  reformer   saw   in  it  a  solid  foundation  for  his 
scheme  for  the  amelioration  of  the  race.     The  hope 
of  the  future  seemed  to  be  brightened  by  this  reflec- 
tion from  the  past.      Loyalty  to  the  cause  of  human 
liberty  seemed  to  require  adherence  to  the  doctrine 
that  that  liberty  was  ancestral.     The  growing  influ- 
ence  of  the  Germanists  received  support  from  and 
supported  a  theory  which  glorified  the  freedom-loving 
spirit  of  the  race.     Not  until  within  the  last  decade 
has  the  inevitable  reaction  set  in,  and  it  is  but  fair 
to  say,  that  the  result  of  that  reaction  has  rendered 
•  necessary  a  reexamination  of  the  entire  field. 

Nor  can  this  examination  be  confined  to  the  Teu- 
tonic peoples.  For  the  writers  who  have  followed 
Kemble  and  Maurer  not  only  have  discovered  the 
existence  of  the  mark  in  many  other  races,  but 
also  have  seemed  to  suggest  a  new  principle  of 
institutional  development  —  that  the  mark  represents 
a  phase  through  which  the  entire  human  race  must 

needs  pass. 

Professor  Nasse  contented  himself  with  applying 
Maurer's  conclusions  to  England.    While  admitting  1 

1  Nasse,  Land  Community  in  the  Middle  Ages.     Translation, 
Cobden  Club  publication,  p.  14. 


4         The  Mark  in  Europe  a7td  America. 

that  Kemble  had  not  proved  the  existence  of  the 
mark  associations  in  England,  he  gave  a  mass  of 
valuable  evidence  in  regard  to  the  commonable 
fields,  commons,  and  villages  in  England,  the  twa- 
field  and  three-field  systems  of  cultivation,  and 
communal  manorial  customs,  which,  considering  the 
persistence  of  agrarian  systems,^  in  his  judgment 
indicated  the  universal  prevalence  of  the  mark  as 
the  social  unit  in  Saxon  England. 

Sir  Henry  Maine  went  further.  Accepting  the 
conclusions  of  Maurer,  and  of  Nasse,^  as  established, 
without  any  reexamination  of  the  evidence  in  the 
case,  he  undertook  to  apply  the  comparative  method 
to  the  problem ;  and  in  his  Village  Communities  in 
the  East  and  West  (1871),  he  pointed  out  the 
resemblance  of  the  modern  village  communities  in 
India  to  the  Teutonic  Mark,  regarding  the  former 
as  a  case  of  arrested  development.  In  a  later  work, 
Early  Law  and  Custom,  he  presented  the  bearing  of 
the  more  recent  Irish  evidence  upon  the  theory. 
Impressed  with  the  wide-spread  existence  of  certain 
phenomena  among  the  Aryan  peoples,  and  accepting 

^  "  Agrarian  relations  have  a  tendency  to  a  more  lasting 
duration  than  any  other  human  institutions."  —  Nasse,  Lai\d 
Community  in  the  Middle  Ages,  p.  11. 

2  Maine,  Village  Communities  in  the  East  and  West,  p.  11. 


The   Theory  of  the  Germanic  Mark.         5 

the  mark  as  demonstrated,  he  proceeded,   with  his 

accustomed  candor  and  moderation,  to  construct  a 

theory  which  should  account  for  the  transformation 

of   the   patriarchal  family  into  the   mark   and   the 

mark  into  the   manor.^      Other  writers   brought  in 

new  evidence    until    Celts    and    Scandinavians    and 

Sclav3,  Romans  and  Greeks  and  Hindoos  as  well  as 

Germans  were  asserted  to  have  passed  through  this 

stage  at  some  period  of  their  history.     Viollet  found 

the   institution    in   ancient    Greece;    Jubainville   in 

ancient  Gaul;  while  Laveleye  identified  it  with  the 

Mir,  which   he   regarded    as  the  primordial  cell  of 

Russian  society .^ 

But  Laveleye  and   others   have  wished  to    show 

that  the  mark  or  village  community  was  not   con- 
fined to    the    Aryans,  but    was    as    wide-spread    as 

1  Kovalevsky  credits  Maine  with  "  having  first  brought  to 
light  the  truth  which  is  now  all  but  established,  that  village 
communities  represent  a  distinct  period  in  the  social  develop- 
ment of  mankind,  a  period  which  ought  to  be  placed  between  the 
patriarchal  and  feudal  periods,  and  that  therefore  all  endeavors 
to  explain  their  existence  among  this  or  that  people  by  the  pe- 
culiarities of  national  character  ought  to  be  henceforth  declared 
useless  and  worthless."  —  Modern  Customs  and  Ancient  Laws 
of  Russia,  p.  72. 

^  "  La  commune  est  la  molecule  constitutive  de  la  nationality 
russe.  .  .  .  Seule  elle  est  propria taire  du  sol,  dont  les 
individus  n'ont  que  Tusufruct  ou  la  jouissance  temporaire." 
—  De  la  propridtd  et  de  ses  formes  primitives,  p.  1 1 . 


( 


6         The  Mark  in  Etirope  and  America. 

the  human  race  itself.^  Savage  tribes  and  pre- 
historic man  were  made  to  illustrate  the  universality 
of  the  institution.  Mr.  G.  L.  Gomme  in  The  Village 
Conwiimity  would  place  the  English  village  com- 
munity on  this  new  basis. 

A  yet  wider  application  for  the  village  community 
theory  was  sought.  It  is  represented  as  not  merely 
a  stage  in  institutional  development;  it  is  the  nat- 
ural form  society  will  take  if  unhampered.  For 
evidence  was  brought  forward  to  show  its  reappear- 
ance on  American  soil,  and  the  inference  was  not 
unfair  that  we  were  coming  upon  the  traces  of  a 
principle  deep-seated  in  human  nature  itself.^     Re- 

^  "  Aujourd'hui  on  peut  d^montrer  que  ces  communaut^s  ont 
ne  exists  chez  les  peuples  les  plus  divers,  chez  les  Germains  et 
dans  Tantique  Italie,  au  P^rou  et  en  Chine,  au  Mexique  et  dans 
rinde,  chez  Scandinaves  et  chez  les  Arabes,  exactement  avec  les 
memes  charact^res.  Retrouvant  ainsi  cette  institution  sous 
tous  les  climates  et  chez  toutes  les  races  on  y  peut  voir  une  phase 
n^cessaire  du  d^veloppement  des  soci^t^s  et  une  sorte  de  loi 
universelle  presidant  a  revolution  des  formes  de  la  propridt^ 
fonciere."  —  Laveleye,  Prim.  Prop.,  p.  2.  Mr.  G.  L.  Gomme, 
The  Village  Community,  p.  3,  says  :  "  It  must  be  reckoned 
with  as  one  of  the  phases  through  which  practically  all  man- 
kind who  have  reached  a  certain  stage  of  development  must 
have  passed." 

2  Maine,  Village  Communities,  p.  138,  says  that  evidences 
such  as  *'  the  English  settlement  in  North  America  lead  me  to 
think  that  assemblages  of  people  planted  on  waste  land  would 
be  likely  to  reproduce  the  system  literally." 


The  Tfteory  of  the  Germanic  Mark.        7 

move  the  pressure  of  ages  of  oppression,  give 
human  nature  free  scope  in  a  new  world  and 
forthwith  the  institution  reappears.  So  broad  was 
the  application  of  the  communal  principle  that  the 
theory  seemed  to  be  degenerating  into  a  restatement 
of  the  proposition  that  ''  man  is  a  social  animal.'' 

It  was  inevitable  that  the  general  acceptance  of 
such  a  theory  should  change  historical  perspective ; 
and  no  one  who  is  familiar  with  the  pages  of  Green 
and  Freeman  is  unconscious  of  the  fact  that  it  has 
done  so.     If  Stubbs  has  shown  more  caution,  he  has 
none  the  less  influenced  the  minds  of  his  readers  in 
the  same  direction.     The  economists,  too,  are  not  so 
wedded  to   abstract  theory  as  not  to  yield  to  the  in- 
fluence of  historical  dogma,  —  witness  the  use  which 
was   made  of   this  dogma  in  the  land  theories   of 
so   classic  an  economist   as   Mill,  and  such  radical 
reformers  as  Laveleye  and  Henry  George. 

The  desire  for  a  clear  understanding  of  the  recent 
discussion  of  the  subject  must  be  our  excuse  for  re- 
producing the  familiar  picture  of  the  mark  as  drawn 
by  the  succession  of  writers  who  have  given  it  form 

and  coloring. 

The  mark,  we  are  told,  consisted  of  a  definite  area 
of  land,  and  upon  it  an  organized  group  of  families 


8 


r 


The  Mark  in  Europe  and  America. 


who  owned,  occupied  and  cultivated  it  in  common.^ 
It  may  be  viewed  in  its  territorial  aspect,  or  in  its 
political  and  economic.     As  a  territory  it  was  a  tract 
usually  separated  from  other  similar  tracts  by  waste 
lands.     It  was  composed  2  of  (i)  the  village  area,  di- 
vided into  lots  of  equal  size,  which  were  assigned  to 
the  members  of  the  community;  (2)  the  arable  mark 
(Feldmark),  or  arable  land  lying  about  the  village  in 
two  or  three  fields  and  apportioned  in  holdings  of  equal 
size  among  the  freemen;  (3)  the  common  mark,  or 
pasture  and  waste  land  surrounding  the  arable,  which 
was  the  common  property  of  the  community.     Each 
family  of  which  the  mark  organization  was  made  up 
or  rather  each  freeman,  as  the  head  and  representa- 
tive of  this  social  unit,  had  an  equal  share  3  in  the 
arable  land  and   equal  rights  in  the  common  mark. 
In  the  earliest  times  the  allotment  of  this  share  was 
supposed  to  have  been  made  annually  by  lot  or  other- 
wise.    At  a  later  period  the  allotment  was  made  for 
a  series  of  years;  and  later  still  this  system  of  'shift- 

^  Stubbs,  Constitutional  History,  I.  p.  53. 

2  Morier,  Systems  of  Land  Tenure  in  Various  Countries 
(Cobden  Club  Pub.),  p.  279.  Maine,  VUlage  Communities, 
P-  78. 

»  "  Jeder  Genosse  hatte  gleiche  Rechte  an  der  Feldmark."— 
Maurer,  Einleitung,  p.  93.  u  Der  Antheil  eines  jeden  an  den 
Garten,  Feldern  und  Wiesen  ward  dem  selben  zugemessen  und 
man  nannte  den  ganzen  Antheil  das  Loosgut."  — Ibid.  p.  7. 


The   Theory  of  the  Germa^tic  Mark.        9 

ing  severalties*  gave  place  to  permanent  holdings. 
The  ownership  still  continued    in  the  community,^ 
though  the  theorists  regard  this  permanence  of  oc- 
cupation as  a  step  toward  individual  property .^     But 
the    community  regulated    the    kind  of  crops    and 
the  mode  of   culture.^     On  the  death  of  the  holder 
his    holding    reverted    to    the    community,*   which 
allotted  it  again,  —  usually,  it  is  true,  to  the  family 
of  the  deceased.     Pasture  and  woodland  were   en- 
joyed equitably  by  all  members  of  the  community 
under   an    officer    elected   for    the    purpose.^     The 
members  of  the  mark-community  were  freemen  with 
equal  political  rights.     Maine  describes  them  as  "an 
organized  self-acting  group  of  Teutonic  families."^ 
"The  group,"  says  Kemble,^  was  "a  voluntary  as- 
sociation of  freemen  amply   competent    to   all    the 
demands   of  society,  who  laid  down  for  themselves 

1  "  It  is  a  strict  ownership  in  common  both  in   theory  and 
practice."  —  Maine,  Village  Communities,  p.  79. 

2  Nasse,  p.  1 1.     Maine,  Village  Communities,  pp.  80,  81,  82. 
»  "  In  the  common  mark  and  the  arable  mark  the  individual 

is  everywhere  controlled  by  his  peers."— Morier,  System  of 
Land  Tenure,  p.  281. 

*"Nul  n'y  exercait  un  droit  permanent  et  hereditaire."  — 
Lavellye,  De  la  propridt^  et  de  ses  formes  primitives,  p.  ^T, 

*  Maine,  Village  Communities,  pp.  79,  99. 

*  Ibid.  p.  10. 

^  Saxons,  I.  p.  53. 


lO 


The  Mark  in  Europe  and  America. 


and  strictly  maintained  a  system  of  cultivation  by 
which  the  produce  of  the  land  on  which  they  settled 
might  be  fairly  and  equally  secured  for  their  service 
and  support."     And  again,  "The  markmen,  within 
their  own  limit,  were  independent,  sufficient  to  their 
own  support  and  defence,  and  seized  of  full  power 
and  authority  to  regulate  their  own  affairs."   Together 
the  freemen  constituted  the  legislative  body ;  together 
they  composed  the  common  court ;  together  they  ex- 
ercised  a   common   proprietorship   over  the  entire 
mark.     Every  freeman  ^  had  an  equal  voice  in  the 
common  courts  and  councils.     Maine  describes  the 
manorial  group  as  succeeding  a  "group  of  house- 
holds of  which  the  organization  and  government  were 
democratic."  ^     It  was  a  pure  democracy  practicing 
a  strict  agrarian  communism.^     But  along  with  this 
asp~ect  of  the  freeman  as  "commoner,"  it  must  be 
remembered  that  he  also  exercised  the  functions  of 
"  lord."  *     Within  his  own  home  and  house-yard  he 

1  Green  poetically  describes  him  as  "  the  free-necked  man 
whose  long  hair  floated  over  a  neck  that  had  never  bowed  to  a 
lord." — Making  of  England,  p.  i73- 
^      «  English  Village  Communities,  p.  134. 

»  »  The  typical  principle  of  the  Teutonic  law  was  '  the  land 
held  in  common.'  "  — Kemble,  Cod.  Dip.  Intro.,  p.  iv. 

«  Morier,  Land  Tenure,  p.  281.      Maine,  ViUage  Communi- 
ties, p.  82. 


TJu  TJieory  of  the  Germanic  Mark. 


II 


was  supreme.!  Even  if  we  can  not  agree  with  Sir 
Henry  Maine  that  the  power  of  the  freeman  in  his 
own  household  was  practically  the  '  patria  potestas,' 
yet  he  had  undisputed  control  of  his  house,  his 
family,  and  his  servants;  and  it  is  worth  while  to 
note  that  we  have  thus  co-existing  the  extremes  of 
despotic  patriarchal  government  in  the  family  and 
of  democratic  government  in  the  community. 

The  mark  is  presented  to  us  as  a  fundamental  in- 
stitution of  the  Teutonic  race.     Kemble  says,  "  This 
is  the  original  basis  upon  which  all  Teutonic  society 
rests."  2     And  again,  "  However  far  we  may  pursue 
our  researches  into  the  early  records  of  our  fore- 
fathers, we  cannot  discover  a  period  at  which  the 
organization  was  unknown. ' '  ^     According  to  Maurer, 
«'  The  associations  of  the  mark  are  bound  up  with  the 
primitive  cultivation  of  the  soil ;  they  can  be  traced 
back  to  the  earliest  German  settlements,  and  in  all 
probability  once  occupied  the  whole  of  Germany."  * 

1 «'  Von  jeher  war  namlich  der  freie  Germane  in  seinem 
Hause  und  in  seiner  Familie  sein  eigener  H err."  —  Maurer, 
Einleitung,  p.  239.     Maine,  Ancient  Law,  p.  13S;  Early  Law 

and  Custom,  p.  S7- 
«  Saxons,  I.  p.  53. 

»  Ibid.  p.  37-  ,  , 

*  As  quoted  by  Fustel  de  Coulanges,  Mrs.  Ashley  s  transla- 
tion, Origin  of  Property  in  Land,  p.  4-  In  Maurer's  theory,  of 
course,  provision  is  also  made  for  single  farmsteads.  But  he 
regards  these  as  comparatively  unimportant. 


i 


\ '  I 
0 


12 


Tlie  Mark  in  Europe  and  America. 


Maine  declares  that  ''  it  is  well  known  to  have  been 
the  proprietary  and  even  political  unit  of  the  earliest 
English  society."  ^  And  again  he  refers  broadly  to 
*' countries  like  Germany  and  England,  where  the 
cultivated  soil  was  in  the  hands  of  free  and  fully 
organized  communities/'  ^ 

The  mark  has  not  been  presented  to  us  as  existing 
alongside  of  other   political  and  territorial    institu- 
tions,  but   as    the   fundamental    institution   out    of 
which  or  upon  the  ruins  of  which  later  institutions 
arose.3     Yet  it  is  not  an  institution  of  the  savage 
or  nomadic  nor  even  of  the  pastoral  stage.     It  is  a 
phase  of  economic  development    succeeding  these, 
and  of  political  development  succeeding  the  strictly 
patriarchal  and  tribal  forms  of    society.      It   is,  of 
course,  closely   connected   with  these;   but  the  tie 
which  binds    the    members  of    the  community    to- 
gether is  territorial  and  no  longer  that  of  kinship.* 

1  Village  Communities,  p.  lo. 

2  Ibid.  p.  132. 

«  "  Every  Teutonic  community  has  been  evolved  out  of  a 
germ  identical  in  its  rudimental  construction  with  that  of 
every  other."  —  Mori er,  Systems  of  Land  Tenure,  p.  243. 
"  The  original  Teutonic  community  is  an  association  of  free- 
men, a  *  Gemeinde,'  a  commonality  or  common." 

-*  "  From  the  moment  when  a  tribal  community  settles  down 
finally  upon  a  definite  space  of  land,  land  begins  to  be  the 
basis  in  society  instead  of  kinship."  —  Mame,  Early  History  of 


Tlie  Theory  of  tJie  Germa^iic  Mark.      1 3 

Local    contiguity,    and    finally    the    area    of    land 
occupied    becomes    the  basis   of    the    group.     It   is 
explained  that  from  the  earliest  settled  agricultural 
state  Teutonic  society  assumed  the  territorial  and 
political  aspects  set  forth  by  the  mark  theory;   and 
that   it  continued  under  this  mode  of  organization 
until  through   internal  and   external   influences  the 
mark  became  the  manor,  the  town  or  the  city,   and 
private  property  in  land  became  the  rule.     By  war, 
by  the  abuse  of  official  trust,  and  by  the  encroach- 
ments of  the  powerful,  wealth  and  power  accumulated 
in  the  hands  of  a  few,  and  the  feudal  system  became 
dominant.     It  thus  became    a   favorite  problem  of 
constitutional  and  economic  historians  to  determine 
**how   the   mark  became  the   manor."      The   pop- 
ular   theory^    was    that    some     social    earthquake, 

Institutions,  p.  72;  cf.  also  Allen,  Monographs,  p.  233.  "The 
original  Teutonic  community  is  an  association  of  freemen 
amongst  whom  the  private  right  of  property  in  land  is  correla- 
tive to  the  public  duty  of  miUtary  service  and  participation  in 
the  legislative  and  other  political  acts  of  the  community."  — 
Morier,  Land  Tenure,  p.  279.  "  The  tie  of  blood,  however,  was 
widened  by  the  larger  tie  of  land."  —  Green,  Making  of  Eng- 
land, p.  1 84.  "  The  cement  binding  the  whole  group  has  prac- 
tically changed  from  kinship  to  land."  —  Gomme,  p.  64.  How- 
ard,   Local    Const.   Hist.   U.    S.,    emphasizes   kinship   in   the 

mark.     Vol.  L  p.  14. 

1  "  Mr.  Blamire  appears  to  have  unreservedly  adopted  the 
popular  theory  on  the  subject,  which  I  believe  to  be  that  at 


i 


4 


14      The  Mark  in  Europe  and  America. 

such  as  the  Norman  conquest  in  England,  had 
overthrown  this  communal  and  democratic  organi- 
zation of  society,  and  had  imposed  on  the  free  vil- 
lage community  a  regime  of  private  property  in  land 
and  feudal  despotism.  It  was  asserted  or  implied 
that  the  entire  soil  was  confiscated  and  the  freemen 
reduced  to  serfs.  But  modern  science  looks  with 
doubt  upon  theories  which  rely  upon  sudden  and 
great  disturbances  to  account  for  phenomena,  and  an- 
other theory,  more  in  accordance  with  modern  views 
of  evolution,  has  become  generally  accepted,  viz.,  that 
the  mark  had  within  itself  the  germs  ^  of  the  feudal 

some  period  —  sometimes  vaguely  associated  with  the  Norman 
conquest  —  the  entire  soil  of  England  was  confiscated;  that  the 
whole  of  each  manor  became  the  lord's  demesne;  that  the  lord 
divided  certain  parts  of  it  among  his  free  retainers,  but  kept  a 
part  in  his  own  hands  to  be  tilled  by  his  villeins;  that  all  which 
was  not  required  for  this  distribution  was  left  as  the  lord's 
waste;  and  that  all  customs  which  cannot  be  traced  to  feudal 
principles  grew  up  insensibly  through  the  subsequent  tolerance 
of  the  feudal  chiefs."  —  Maine,  Village  Communities,  p.  84. 
It  is  well  known,  however,  that  this  was  the  generally  accepted 
legal  theory. 

1  "  In  England  before  the  Norman  conquest  the  Feudal 
System  most  certainly  did  not  exist.  There  was  no  systematic 
feudahsm,  but  the  elements  of  feudalism  were  there."  —  Free- 
man, Norman  Conquest,  I.  p.  91.  "By  these  means  (such  as 
the  conquest)  the  old  system  of  the  free  Teutonic  community 
gradually  died  out  in  England,  as  it  died  out  in  all  parts  of  the 
continent."  —  Ibid.  I.  p.  96. 


The   Theory  of  the  Germanic  Mark.       1 5 

system,  that  the  change  came  slowly  under  the  in- 
fluence of  internal  forces  and  was  only  hastened  by 
external  forces.^     Possession  of  the  house-lot  in  the 
village  mark  first  hardened  into  property ;  then  the 
permanent  allotment  in  the  arable ;  ^  last  of  all  the 
common   mark    became    private   property,    through 
continued  encroachments  of  a  lord  or  its  seizure  by 
the  king.     But  whether  the  change  came  from  within 
or  without,  the  end  was  the  same,  viz.,  the  destruc- 
tion   of    the  liberty  of    the   masses,    the    robbing 
them  of  their  common  right  to  the  soil,  the  substitu- 
tion of  private  ownership  of  the  land  by  the  lord  for 
community  of  ownership  by  the  people.     But  the 
old  order  had  left  its  traces  deep  in  the  soil,  and 
in  the  methods  of  cultivation,  and  in  the  communal 
rights,  usages  and  laws  of  the  people. 


i 


Let  us  ask  ourselves  now  what  are  the  essentials 
of  this  theory  of  primitive  Teutonic  society. 

First  and  most  important  is  community  of  prop- 
erty. The  theory  on  this  point  is  not  always  clearly 
stated.  At  one  time  the  land  is  said  to  be  owned  by 
the  entire  village  community ;  again  it  is  alleged  that 

1  Maine,  Village  Communities,  pp.  84,  132,  145. 

2  "  Private  property  first  came  into  vogue  with  arable  land." 
Nasse,  Land  Community  in  Middle  Ages,  p.  11. 


i\ 


1 6      The  Mark  m  Europe  ajid  America. 

there  is  no  ownership,  merely  undisputed  possession 
by  it  as  an  organized  group.  The  manner  of  state- 
ment matters  little;  in  all  cases  ownership  or  pos- 
session is  communal,  and  private  property  is  non- 
existent. It  must  not  be  forgotten  that  this  ownership 
by  the  mark  is  distinctly  different  from  family 
ownership.  It  represents  a  different  stage  from 
that  in  which  the  family  is  the  proprietary  unit.  It 
is  true  that,  according  to  the  theory,  holdings  are 
distributed  to  the  families  as  represented  by  their 
heads,  the  freemen.  But  the  ownership,  if  such  it 
may  be  called,  remains  with  the  community.  Nor 
is  it  the  same  as  joint  ownership.  The  mark  was 
not  a  company  of  which  the  individual  markmen 
were  the  members  and  of  whose  property  they  were 
co-proprietors.  The  units  of  which  the  mark  was 
composed  became  vested  with  no  proprietary  rights 
which  they  might  sell,  donate,  or  bequeath.  When 
the  holder  of  a  portion  of  the  arable  and  rights 
of  common  died,  the  holding  reverted  to  the  com- 
munity and  was  again  allotted. 

The  second  essential  feature  is  that  of  freedom 
and  self-government.  Slavery  may  have  existed, 
but  the  mass  of  the  people  were  free. 

The  third  essential  feature  is  the  substantial 
equality    of     the     markmen.      All     members    had 


Tlie  TJuory  of  the  Germanic  Mark.      1 7 

equal  political  rights  and  privileges.  And  it  was 
the  equality  of  sovereigns.  Together  they  made 
the  simple  laws  and  administered  the  simple  justice 
which  such  a  state  of  society  required.  The  same 
equality  extended  to  the  holdings  of  land  and  rights 
of  pasturing  stock  and  feeding  pigs  and  gathering 
wood  in  the  forest.  The  manifest  and  intentional 
tendency  of  this  arrangement  was  toward  equality  of 
possessions  and  social  standing,  though  some  writers 
have  admitted  that  there  were  grades  of  wealth  and 

rank. 

Teutonic  society,  then,  began  in  free  self-governed 
communal  organizations  whose  members  enjoyed  a 
substantial   equality:    it   did  not   begin   in  serfdom 
nor  under  a  regime  of  individud  ownership  of  land. 
What  strikes  one  at  first  in  this  theory,  apart  from 
a  certain  air  of  artificiality,  is  its  resemblance  as  a 
scheme  of  social  organization  to  certain  conceptions 
that  had  once  been  thouglit  the  product  of  a  later 
age.      Its  democracy,    its   individualism,    and   to  a 
certain   extent  its  communism   are  very  like  nine- 
teenth  century    ideals.      The    next  thing  that  im- 
presses  one   is    its   unlikeness    to    what    preceded 
and  what  followed  it.      Succeeding  the  despotism 
of  the  patriarchal  family  and  preceding  the  despotism 
of  the  feudal  lord  is  a  long  period  of  democratic  gov- 


1 8      The  Mark  in  Europe  and  America. 

ernment.  One  thinks  of  the  geologist's  "dike/' 
where  through  the  fissure  in  the  stratum  there  has 
been  thrust  a  vein  of  mineral  of  another  kind. 
Even  during  the  existence  of  the  village  community 
in  its  typical  form  there  is  a  striking  contrast 
between  the  ideas  which  prevailed  in  the  family  and 
those  which  are  associated  with  the  mark.  Within 
the  family,  ov/nership  is  centered  in  one,  the  head, 
and  ideas  of  personal  subjection  and  slavery  are 
dominant ;  within  the  mark,  ownership  is  absent,  and 
perfect  freedom  and  equality  reign.  Yet,  Sir  Henry 
Maine  has  assured  us  that  there  were  in  the  patri- 
archal  family  inherent  tendencies  toward  such 
an  institution  as  the  mark,  and  that  there  were 
in  the  mark  'ineradicaV  tendencies  toward  feudal- 
ism.^ 

If  one  were  asked  during  what  period,  among 
Teutonic  peoples,  this  institution  existed,  it  would 
be  impossible  to  answer  definitely  on  the  authority 
of  those  who  have  introduced  it  into  our  history. 
Yet  one  might  say  broadly,  from  the  first  permanent 
occupation  of  a  definite  area  of  land  by  the  Germanic 
tribes,  previous  to  the  times  of  Tacitus  and  Caesar, 
down  to  the  Norman  Conquest.  While  it  has  been 
asserted  that  many  of  its  striking  features  had  ceased 

1  Ancient  Law,  p.  130.     Village  Communities,  pp.  21,  130. 


The  Theory  of  the  Germanic  Mark.      19 

to  exist  long  before  that  date,  yet  many  projected 
themselves  far  beyond  it. 

In  endeavoring  thus  to  gather  up  the  elements  of 
the  mark  theory  and  to  present  it  with  definiteness 
as  to  form  and  time,  there  has  been  given  to  it  a 
certain  artificiality  which  it  did  not  have  in  the  minds 
of  those  who  have  written  upon  it.  Yet  it  seemed 
impossible  to  form  a  clear  an^  faithful  picture  which 
should  be  wholly  free  from  this  fault. 


Nature  of  the  Evidence. 


21 


II. 


NATURE    OF   THE    EVIDENCE. 

"^OW    let   us   inquire  upon  what  evidence   the 
theory  of  the  Teutonic  mark  was  based.     It  is 
of  two  kinds,  (i)  documentary,  and  (2)  that  to  be  found 
in  the  soil  itself  and  in  the  local  usages  and  laws  of 
communities  existing  at  the  present  day.    Or  perhaps 
we  would  better  divide  it  into  the  earlier  and  the  later 
evidence;    the  former  being  wholly  documentary  and 
covering  the  period,  roughly  speaking,  from  Caesar 
on  down  well  into  the  middle  ages ;  the  latter  covering 
both  the  later  documentary  evidence  which  might 
throw  light  upon  early  conditions,  and  the  survival  in 
the  soil  itself,  such  as  open  fields  and  commons,  and 
in  local  law  and  custom,  of  the  earlier  order  of  things. 
It  is  legitimate  to  regard  these  as  the  debris  of  an 
ancient  system  and  from  them  to  reconstruct  that 
system. 

The  earliest  documentary  evidence  is  found  in  the 
meagre  descriptions  of  Germany  and  the  Germans 
given  by  Caesar  and  Tacitus,  the  latter  writing 
at  the  end  of  the  first  century  and  the  former  a 
hundred   and    fifty  years    earlier.       As   this   is  the 


earliest  evidence,  it  is  of  great  importance,  since 
the  interpretation  of  the  later  evidence  will  be 
affected  by  the  mental  picture  formed  of  the  con- 
ditions  there  described.  A  blank  of  three  centuries 
follows  where  no  evidence  for  or  against  the  theory 
is  to  be  found.  From  the  5th  century  forward  light 
is  thrown  upon  the  continental  conditions  by  the 
laws  of  the  various  Germanic  and  Prankish  peoples, 
and  by  the  whole  body  of  charters  and  similar  docu- 
ments from  the  8th  century  onward;  while  on  the 
English  side  we  have  chiefly  the  evidence  of  the 
remnants  of  Anglo-Saxon  Law  from  Ethelbert  for- 
ward, and  the  collection  of  Anglo-Saxon  charters 
and  documents  from  the  7th  century  till  the  Con- 
quest. The  same  body  of  evidence  is  to  be  appealed 
to  by  those  who  seek  to  establish  and  those  who 
deny  the  existence  of  the  Teutonic  mark.  It  was  to 
this  Maurer  appealed,  and  it  was  in  the  light  of  this 
that  he  interpreted  the  later  facts.  It  might  be 
remarked  that  his  immediate  followers,  so  far  as  the 
earlier  evidence  is  concerned,  trod  in  his  footsteps, 
turning  neither  to  the  right  hand  nor  to  the  left. 

The  later  evidence  is  much  more  abundant.  There 
is  abundant  material  in  regard  to  the  village  commu- 
nities of  the  I  ith  and  12th  and  later  centuries.  On 
the  English  side  there  is  no  lack  of  documents  from 


1 


22       The  Mark  in  Europe  afid  America. 

Domesday  onward,  through  manorial  ^extenta,'  par- 
liamentary rolls,  court  records,  ecclesiastical  records, 
manorial  accounts,  chroniclers,  law  books,  etc.,  and 
in  more  recent  times  in  the  enclosure  acts  and  the 
transactions  of  commissions  under  them ;  and  finally 
there  are  proofs  of  an  earlier  and  different  order  of 
things  which  are  left  on  the  soil  and  in  the  enjoy- 
ment of  certain  communal  rights  and  privileges.  In 
judging  of  this  evidence  allowance  must  be  made  for 
the  "personal  equation."  Here  as  elsewhere  one 
is  likely  to  see  what  he  expects  to  see.  If  one 
approach  the  evidence  with  the  mark  in  his  mind 
he  is  apt  to  find  the  mark  in  the  evidence. 

The  dangers  of  the  method  of  reconstruction  from 
historical  remains,  just  referred  to,  have  been  so  fre- 
quently pointed  out,  even  by  those  who  have  straight- 
way fallen  into  them,  that  it  is  scarcely  worth  while 
to  suggest  the  careful  scanning  of  the  inductions  so 
made.  The  common  enjoyment  of  privileges,  joint 
labor,  equality  in  the  size  of  holdings,  cooperation  in 
cultivation,  the  mutual  helpfulness  of  neighbors,  are 
not  sufficient  grounds  for  the  induction  of  communal 
ownership  and  equal  and  sovereign  political  rights. 
Every  log-rolling,  house-raising,  corn-husking,  apple- 
paring  and  wool-picking  that  has  taken  place  in 
America  cannot  be  taken  as  evidence  of   the  pre- 


ki 


Nature  of  the  Evidence. 


23 


existence  in  the  Anglo-Saxon  race  of  the  Germanic 
mark.  The  ''ye-ho-ho**  of  the  negro  roustabouts  on 
an  old  Mississippi  steamer,  as  they  tugged  together 
at  the  line,  was  a  good  example  of  community  of  ac- 
tion and  of  a  certain  equality,  but  was  proof  neither 
of  freedom  nor  of  the  common  ownership  of  any- 
thing. In  truth,  the  best  example  of  equality  and 
of  community  of  cultivation  that  has  been  witnessed 
in  America  was  to  be  seen  on  the  great  southern 
plantations  before  the  civil  war. 

Oh  the  other  hand  it  is  not  sufficient  proof  of  the 
absence  of  political  freedom  to  show  the  existence  of 
wealth  and  rank  and  the  dependence  of  the  poor.  It 
is  not  quite  proof  that  men  were  bound  to  the  soil  as 
serfs  to  be  assured  that  they  were  virtually  unable 
to  move  from  place  to  place,  and  were  virtually  at 
the  mercy  of  the  rich  and  powerful.  All  these  may 
be  found  to-day,  among  those  who  are  supposed 
to  possess  a  high  degree  of  political  freedom  and 
political  equality.  Indeed  the  question  seems  too 
sharply  put  when  it  is  stated,  "  Did  Teutonic  civili- 
zation have  a  free  or  a  servile  origin.'^**  as  though 
the  whole  truth  must  lie  in  the  one  or  the  other  of 
these  two  words.  To  answer  categorically  the  ques- 
tion, *Were  our  ancestors  serfs,  or  freemen.'^'  we 
must  inevitably  modify  our  conceptions  of  the  terms. 


f=i 


m^t^imm^^0^m 


24      T/ie  Mark  in  Europe  and  America. 

Witb  this  statement  of  the  mark  theory,  as  almost 
universally   accepted,    and   with   this    caution   with    - 
regard  to  the  evidence  bearing  on  the  case,  we  are 
in  a  position  to  apply  ourselves  to  the  more  recent 
discussion   of    the  theory.      This   is   of  two  kinds: 
that  which  aims  directly  at  supporting  or  attacking 
the  theory,  and  that  which  simply  seeks  to  discover 
the  economic  and  political  conditions  of  the  period 
involved,  regardless  of  its  bearing  upon  any  particular 
theory.     The  two  methods  cannot  be  wholly  sepa- 
rated; both  aim  at  the  same  end  and  are,  for  the 
most  part,  conducted  in  the  same  spirit.     The  grave 
doubts  cast   upon  the  theory  by  the  first  method 
naturally  led  the  way  to  the  second. 

From  two  directions  and  almost  at  the  same  time, 
and  yet  without  any  concert  of  action,  came  the 
attack  upon  the  mark  theory,  as  propounded  by 
Maurer  and  his  disciples.  And  yet  we  seem  to  mis- 
represent the  admirable  attitude  of  these  investi- 
gators  by  describing  their  work  as  an  attack. 

These  lines  of  approach  correspond  to  the  nature 
and  method  of  the  evidence  adduced  in  its  support. 
The  one  line  was  from  the  earliest  period  downward, 
and  dealt  exclusively  with  the  documentary  evidence 
during  the  supposed  existence  of  the  institution; 
the  other  was  from  the  present  upward  toward  the 


Nature  of  the  Evidence. 


25 


;i 


sources,  from  the  known  to  the  unknown,  and  dealt 
with  the  evidence  yet  remaining  in  the  land  and 
people,  as  well  as  in  the  abundant  documents  cover- 
ing the  period  since  the  mark  was  supposed  to  have 
been  overthrown  by  feudalism.  The  two  lines  met 
and  formed  one.  It  is  not  overstating  the  results  of 
this  work  to  say  that  it  necessitates  a  newer  and 
truer  statement  of  the  social  and  economical  devel- 
opment of  the  race. 

The  two  names  which  stand  as  representatives  of 
the  two  lines  of  attack  upon  the  mark  theory  are  M. 
Fustel  de  Coulanges  and  Frederick  Seebohm.  Both 
brought  to  the  task  an  eager  zeal  to  discover  the 
exact  truth,  and  the  results  of  patient  and  inexhaust- 
ible research  and  vast  learning.  The  former  is 
sharper*  and  more  controversial  in  his  method,  and 
gives  one  the  impression  of  making  a  more  critical 
analysis  of  his  text  than  the  author  of  the  text  made 
when  writing  it.  The  latter  is  conservative,  cautious, 
sometimes  almost  over-prudent  in  stating  a  conclu- 
sion.i     Though  Seebohm's  work  was  published  first, 

^  An  example  of  this  caution  is  to  be  seen  in  his  argument  in 
regard  to  the  open  field  system  in  England  and  in  Germany, 
which  has  led  some  to  suppose  that  Seebohm  assigns  a  South 
German  origin  to  the  Saxon  settlers  of  England.  Cf.  Prof. 
Ashley's  Criticism  of  Andrews'  "Old  English  Manor,"  Pol. 
Sci.  Quarterly,  March,  1893. 


II 


11 


26      The  Mark  in  Europe  and  America. 

we  will  speak  first  of  that  of  M.  Fustel  de  Coulanges, 
since  that  deals  with  the  earlier  evidence. 

It  was  twenty-one  years  after  the  appearance  of 
the  Citi  Antique,  itself  a  work  of  profound  scholar- 
ship,   that   M.   Fustel   de    Coulanges   gave   to   the 
world  the  results  of  his  investigations  on  the  alleged 
primitive  agrarian  communism  of  the  Teutonic  race. 
Some   hints   of   his   attitude   on  the  question  had 
previously  appeared  in  the  reviews,  but  it  was  not 
fully  understood  until  in  1885,  when  the  ^'Recherches 
sur  quelques  probllntes   dliistoire "  was   published. 
Nineteen  years,  he  informs  us  in  the  preface,^  had 
been  devoted  to  the  study  of  the  feudal  regime,  fol- 
lowing the  same  methods  which  he  had  employed 
in  the  twelve  preceding  years  in  the  study  of  the 
Greek  and  Roman  constitutions,  and  his  works  cer- 
tainly  display   a  marvelous  acquaintance  with  the 
medieval  documents.     We  are  informed «  that   he 
had  studied  pen  in  hand  all  the  Latin  texts  from 
the   6th    century,    B.C.,   to   the    loth   century,  a.d. 
Filled  with  the  true  spirit  of  the  scientific  method,^ 
and  impressed  with  the  fundamental  importance  of 

1  Preface,  p.  i. 

2  Elton,  English  Historical  Review,  1890. 

8  "Mais  j'ai  toujours  cru  que  le  commencement  de  la 
science  historique  ^ait  de  douter,  de  verifier,  de  chercher.'  - 
Recherches,  p.  1 89. 


Nature  of  the  Evidence.  27 

an  understanding  of  the  primitive  conditions  as  to 
the  ownership  of  land  1  in  order  to  a  clear  compre- 
hension of  the  social  and  political  constitution  of 
the  people,  he  set  himself  to  the  task  of  a  minute 
survey  of  all  the  documents  which  might  throw 
light  upon  the  subject,  and  the  formation  of  a  judg- 
ment upon  the  whole,  not  merely  upon  isolated 
parts  of  texts,  which,  while  they  might  strengthen 
a  position  could  not  contribute  ultimately  to  the  ad- 
vancement of  historic  science.  In  the  LAlleu  et 
le  Domaine  Rural  (1889),  the  author  attempts  a 
more  constructive  study  of  the  history  of  institu- 
tions.2     In  a  long  article  contributed  to  the  Revtce 

1  "  En  tout  temps  et  en  tout  pays,  la  mani^re  dont  le  sol 
^tait  poss^d^  a  ^t^  Tun  des  principaux  dements  de  I'organisme 
social  et  politique."  — L'Alleu  et  le  Domaine  Rural,  Introduc- 
tion, p.  iii.  "  La  possession  du  sol  n'est  jamais  une  chose  isol^e. 
La  propri^t^  est  un  fait  social  que  depend  d'autres  faits  sociaux 
et  dequel  ceux-ci  dependent."— Recherches,  p.  248. 

2  Glasson  has  attempted  to  reply  to  certain  strictures  upon 
him  made  by  Fustel  in  this  volume,  relating  more  particularly  to 
the  village  community  and  communal  land  ownership  in  ancient 
France,  in  a  volume  entitled  Co7nmunaux  et  le  domaine  rural 
a  rdpoque  Franque,  M.  Glasson  regards  the  abundant  evi- 
dences of  private  property  as  due  to  the  Roman  influence;  and 
he  contends,  without,  however,  adducing  any  evidence,  that  the 
language  of  the  texts  implies  the  presence  of  the  free  self- 
governed  village  communities,  and  seems  to  believe  that  these 
are  the  typical  forms  of  social  organization,  and  that  they 
slowly  gave  way  before  Roman  power  and  Roman  ideas. 


I 


28       TJie  Mark  in  Europe  and  America. 

dcs  questions  historiques,  for  April,  1 889,  he  sets 
forth  in  a  more  condensed  form  the  substance  of 
his  investigations  in  regard  to  the  Germanic  mark 
—  an  essay  which  has  been  recently  given  to  us  in 
English  dress  under  the  title  of  "The  Origin  of 
Property  in  Land/'  ^ 

1  Translated  by  Mrs.  Ashley,  with  an  introduction  (summa- 
rizing M.  Fustel's  conclusions  and  applying  them  to  English 
history),  by  Professor  Ashley  (1891,  2d  ed.  1892). 


III. 


DISCUSSION    OF   THE    EARLIER   EVIDENCE. 

T     ET  us  now  look  at  the  earliest  evidence.     And 
since  Tacitus   describes   the   Germans    more 
at  length  than  Caesar,  let   us  begin  with  him.     It 
would  aid  us  greatly  in  estimating  the  value  of  the 
evidence  from  Tacitus  if  we  knew  the  exact  sources 
of  information  upon  which  he  bases  his  description  ; 
whether  this  part  was  from  actual  observation,  that 
part   from    Caesar,    and    the   other  from   travelers' 
tales.     But  that  is  out  of  the  question,  of  course, 
so  we  can  only  assume  that  his  information  on  the 
whole    had    a   certain    degree    of   exactness.      The 
question  then  for  us  to  consider  is,  "  Does  Tacitus 
present  to  us  the  Teutonic  mark }     Do  we  find  in 
his   writings,  supposing  them   to  present   correctly 
the  facts  in  the  case,  the  picture  of  a  social  organ- 
ization   characterized    by   democracy,    equality  and 
agrarian  communism,    such  as  we  have  been  told 
was   the   fundamental   institution    of    Teutonic    so- 
ciety.?"    Taking  the  description   of   Tacitus   as  a 
whole,  one  must  admit  that  he  does  not  find  such 
a  picture  of  *' primitive  democracy.*'     Kings,  chiefs, 


30      TJie  Mark  in  Europe  and  America. 

priests,  nobles,  freemen,  freedmen,  serfs,  and  slaves 
appear  on   every  page    of   the   description.^     Rank 
and  noble  birth  are  held  in  high  honor,  and  are  used 
as  the  means  of  acquiring  more  power  ;  moreover, 
amons:  the  followers  of  those  who  have  been  selected 
as  chiefs  on  account  of  their  noble  birth  there  are 
CTadations  of   rank.^     Indeed  it  is  true,  as  one  of 
the  advocates   of    the   mark  theory  has  beep   con- 
strained to  ^dmit,  that  "  as  far  as  the  eye  can  pene- 
trate  into  the  gloom  of  the  earliest  traditions,  blood 
is  privileged/' 3     Not    only  does   Tacitus  reveal  to 
us  the  existence  of  a  slave  class,  but  he  tells  us 
that  freemen  may  become  slaves,^  and  slaves  may 
become   freedmen.      Slaves    may   be   sold,^   or    be- 
queathed.^   The  freedmen,  we  are  informed,  do  not 
rank   much   above    slaves.^     Then   he   gives    us  a 
glimpse  of  a  slavery,  which  presents  a  remarkable 

1  See  Germania,  §§  5,  7,  lo,  ii.  ^2,  13,  14,  15,  25,  32,  44, 
45,  46.  "  Reges  ex  nobilitate,  duces  ex  virtute  sumunt."  — 
Germ.  7.  "  Insignis  nobilitas  .  .  .  principis  dignationem  etiam 
adolescentulis  assignant."  —  Germ.  1 3.     "  Sed  ob  nobilitatem." 

Germ.   18.     "Inter  obsides  puellae  quoque  nobiles  imper- 

antur."  —  Germ.  8. 

2  Germ.  13. 

8  Morier,  Local  Government  and  Taxation  (Cobden  Club), 

p.  362. 

4  Germ.  24.  *  Ibid.  25. 

6  Ibid.  24.  ^  Ibid.  25. 


Discussion  of  the  Earlier  Evidence.      31 

likeness  to  serfdom  of  the  Middle  Ages.^  After 
speaking  of  the  slaves  that  are  bought  and  sold, 
he  says,  **  They  do  not  use  the  rest  of  their  slaves 
like  ours,  in  various  employments  in  the  family. 
Each  slave  controls  his  own  house  and  home.''  And 
then  he  goes  on  to  tell  us  that  he  renders  to  his 
lord  grain,  cattle,  and  cloth  ^ — payments  in  kind  just 
as  we  find  at  a  later  day.  Now  what  proportion  did 
these  slaves,  serfs  and  freedmen,  with  their  families, 
bear  to  the  whole  population.?  We  do  not  know. 
No  doubt  they  were  a  large  and  growing  class.  We 
are  able  to  infer  that  the  cattle  raising,  and  the 
tillage  —  indeed  all  agricultural  and  domestic  labor 
—  was  in  their  hands;  and  that  their  number  would 
be  likely  to  increase  faster  than  that  of  their  mas- 
ters, whose  occupation  was  war.  For,  note  the  char- 
acter of  the  noble  freemen.^  '*  When  they  are  not 
engaged  in  war,  they  pass  their  time  less  in  hunting 
than  in  sluggish  repose,  given  up  to  eating  and  sleep, 
each  bravest  and  most  warlike  one  doing  nothing, 
having  committed  the  care  of  his  house,  his  family 
affairs,  and  his  land  to  the  women,  the  old  men  and 
to  the  weaker  domestics.**  Now  fill  in  the  picture 
of  this  warrior  freeman,  with  his  house  and  his  land, 
his  slaves  and  his  serfs,  and,  in  case  he  be  of  great 


1  Germ.  25. 


2  Ibid.  15. 


I 

I 


32       TJie  Mark  m  Europe  and  America. 

rank  or  prowess,  a  following  of  freemen  warriors 
who  have  devoted  themselves  to  his  service.  Can 
this  be  fitted  into  an  ideal  Teutonic  mark  ?  It  is  to 
be  remembered,  too,  that  this  section  is  not  describ- 
ing  the  German  war  chief,  but  the  ordinary  German 
freeman. 

Tacitus  describes  a  regime  of  private  property,  — 
at  least  in  movables.  Barter,  gifts,  fines,  and  in- 
heritances are  evidences  of  this.  '*  Wealth,  too,  is 
honored  among  them.'*  ^  The  war  chiefs  are  distin- 
guished  by  presents,^  and  are  expected  to  bestow 
costly  presents  on  their  followers,^  which  would  not 
be  possible  except  on  condition  of  the  possession 
of  great  wealth.  Such  wealth,  of  course,  consisted 
largely  of  the  booty  taken  in  war.  It  may  not  be 
possible  to  prove  that  there  was  ownership  of  land, 
but  the  evidence  points  very  strongly  in  that  direc- 
tion. It  is  mentioned  as  a  remarkable  and  excep- 
tional fact  that  there  is  a  certain  class  of  men  among: 
the  Chatti,^  who  wear  long  hair  and  devote  them- 
selves to  war,  "  to  no  one  of  whom  is  there  a  house, 
or  an  ager,  or  an  occupation,''  and  who  live  off  their 
fellow  tribesmen.  Notice  that  the  ager  is  put  in 
the  same  category  as  the  house.     Whatever  it  was, 

^  "Est  apud'illos  et  opibus  honos." — Ger.  44.     Cf.  id.  21. 
2  Germ,  13.  «  Ibid.  14.  -*  Ibid.  31. 


Discussion  of  the  Earlier  Evide^tce.      33 

it  was  supposed  to  belong  to  a  single  individual. 
Again,  in  section  fifteen,  we  are  told  that  "the  care 
of  his  house  and  his  penates  and  his  agrV'  ^  had  been 
left  by  the  freeman  to  the  women,  old  men  and  ser- 
vants. Whatever  the  agri  were,  they  belonged  to  a 
single  individual.  In  another  section  ^  certain  men 
are  spoken  of  who  worked,  or,  as  we  should  say, 
farmed  the  Decumate  agros,^  The  forty-sixth  section 
tells  us  of  the  Fenni,  the  most  savage  and  poverty- 
stricken  of  all  the  Germans,  who  live  like  wild 
beasts.  And  yet,  says  Tacitus,  they  think  them- 
selves happier  than  those  who  "groan  over  their 
agri^  toil  over  their  houses,  and  place  their  own  fort- 
unes and  those  of  others  between  hope  and  fear." 
The  other  cases  in  which  Tacitus  uses  the  word  agri 
in  the  Germania  we  will  mention  presently.  The 
evidence  which  these  illustrations  offer  of  the  owner- 
ship of  land  is  strong,  but  stronger  still  is  it  when 
woven  into  the  whole  structure  of  wealth  and  rank 
and  power  which  the  entire  description  of  Tacitus 
presents.  The  predominating  influence  of  the  chiefs 
in  public  concerns  is  clearly    set  forth.^     In  some 

^  "  Domus  et  penatium  et  agrorum  cura." 
2  Germania,  29. 

•  Lands  in  S.  W.  Germany  along  the  Rhine,  lately  assigned 
by  the  Romans  to  colonists  on  condition  of  a  payment  of  the 
tenth,  whence  their  name. 

*  Germania,  11. 


ii' 


34      The  Mark  in  Europe  and  America. 

cases,  the  rulers  rule  without  any  restriction.^  Nor 
are  all  the  chiefs  elected  by  a  popular  vote.  They 
gather  about  them  a  personal  following.  It  is  not 
the  vote  of  the  whole  body  of  freemen  that  makes 
any  man  a  war  chief;  it  is  his  winning  the  admira- 
tion and  attachment  of  single  followers;  and  it  is 
the  free  choice  of  the  single  follower  that  makes  him 
a  follower. 

If  this  is  the  condition  of  things  which  Tacitus 
reveals  to  us,  where  is  the  evidence  for  the  mark } 
It  is  found  almost  exclusively  in  the  interpretation 
of  the  few  well  known  and  much  discussed  lines, 
*^Agri  pro  mcmero  ctiltorum  ab  tmiversis  in  vices  oc- 
cupantiiry  qiios  mox  inter  se  secundum  dignationem 
partiuntur;  facilitatetn  partiendi  camporum  spatia 
praestant.  Arva  per  annos  mutant;  et  superest 
agery  ^  Maurer.says  that  ager  meant  ager  pub- 
licuSy  3  public  lands ;  and  that  that  meant  the  mark 
which  was  owned  by  all  in  common.  If  Tacitus  had 
meant  ager  publicus,  he  would  have  said  ager  pub- 
licus.     Tacitus  uses  ager  in  the  Germania  six  times. 

^  Germania,  44. 

2  Ibid.  26. 

«  Maurer,  Einleitung,  p.  84  :  "  Tacitus  nennt  dieses  unge- 
theilte  Land  ager,  das  heisst  wohl  ager  publicus  im  romischen 
Sinne  des  Wortes.  Im  Norden  Europas  nannte  man  es  sehr 
richtig  die  Gemeine ;  das  heisst,  ungetheilte  Mark  oder  auch 
das  Gemeineland." 


Discussion  of  the  Earlier  Evidence.      35 

We  have  already  cited  the  other  four,  in  no  one  of 
which  it  could  possibly  mean  ager  publicus.     In  all 
of  them  it  plainly  means  an  individual  property.     If 
we  were  to  substitute  our  American  word   ^'farm'* 
in  each  of  the  four  cases,  there  would  be  no  jar  in 
the  sense.     Nor  would  there  be  here  in  thus  render- 
ing agri.  ^     But  whatever  may  be  the  rendering  of 
this  much  disputed  passage,  there  is  no  proof  in  the 
text  of  communal  ownership.     There  is  proof  of  in- 
equality among  the  persons,  secundum  dignationem^ 
and  in  the  possessions,  agriy  which  each  received. 
There  is  no  proof  in  the  text,  nor  anywhere  else  in 
Tacitus,  of  annual  allotments.     There  is  no  proof  of 
common  cultivation  by  a  free  village  community.    It 
must  be  confessed,  that,  notwithstanding   the   dis- 
puted meaning  of  the  passage,   it  hardly  required 
on  the  part   of  Fustel  de  Coulanges  the  citing  of 
thirty  passages  from  Cicero,  besides  passages  from 
Cato,  Varro,  Livy,  Columella,  and  the  jurisconsult 
Ulpien,  to  show  that  Maurer's  rendering  ager^s  ager 
publicus — common  land  —  mark,  was  unwarranted. 

1  Perhaps  it  means  something  like  this  :  "  Agri  are  occu- 
pied in  turn  by  the  whole  body  of  cultivators,  in  proportion  to 
the  number  of  cultivators ; "  that  is,  the  more  cultivators,  the 
more  agri  are  occupied.  "  Forthwith  they  divide  these  (the 
agri)  among  themselves  according  to  rank  or  dignity,"  i.e. 
those  of  the  highest  rank  get  the  choicest  agri. 


36      The  Mark  in  Europe  and  America. 


Discussion  of  the  Earlier  Evidence.      37 


„ 


Its  use  by  Tacitus  himself  would  have  been 
sufficient.  More  important  than  this  negative  criti- 
cism  is  the  positive  evidence  he  adduces  for  the  use 
of  ager  for  private  estate,^  a  position  which  might 
have  been  strengthened  by  the  citation  of  its  use  in 
the  Germania  already  referred  to. 

The  picture,  so  far  as  cultivation  is  concerned, 
which  is  presented  to  our  mind  by  the  passage, 
''arva^  per  amios  mutant,''  *^they  change  the  culti- 
vated lands  in  the  course  of  years,*'  is  quite  similar 
to  that  which  was  to  be  observed  in  the  southern 
states  in  the  earlier  part  of  this  century.  It  was  a 
necessary  incident  of  the  "  extensive '*  cultivation  in 
which  the  proprietors  of  great  estates  with  their 
gangs  of  slaves  '*  cropped  "  one  piece  of  land  till  it 
was  exhausted,  and  then,  in  the  course  of  a  few 
years  {per  annos),  changed  the  cultivation  to  fresh 
ground,  throwing  out  the  part  previously  cultivated, 
as  ^'old  fields.'*  3  Among  the  Germans  land  was 
plenty  {stiperest  ager),  they  did  not  cultivate  deeply, 

1  Recherches,  p.  275.  Origin  of  Property  in  Land,  p.  7. 
Mr.  Denman  Ross  also  takes  a  similar  position  in  regard  to  the 
use  of  ager.  See  Early  History  of  Land  Holding  Among  the 
Germans,  p.  4,  and  elsewhere  in  Mr.  Ross's  writings. 

2  "Arva"  is  used  in  contrast  with  "agri." 

*  It  is  not  intended  to  imply  that  the  "  picture  "  formed  is 
that  of  estates  worked  by  slaves,  but  merely  that  the  system 
did  not  permit  the  permanent  cultivation  of  the  same  area. 


nee  eniin  cum   tibertate  soli  labore  contendimt,   and 
in  consequence  did  not  continue  year  by  year  to 
cultivate  the  same  arable  land.     Even  if  per  annos  is 
to  be  read  "every  year,"  ^  there  is  no  reason  to  sup- 
pose that  they  exchanged  with  each  other  the  areas 
cultivated,   in  the  face  of  the  fact  that  land  was  so 
abundant,  but  merely  that  they  gave  one  piece  of 
land  a  rest  while   they   cultivated   another.      The 
language  is  certainly  not  that  which  would  have  been 
used  if  it  had  been  meant  that  they  exchanged  culti- 
vated strips  with   each  other.^     The  translation  of 
the  entire  passage,  ''Agri  pro  mimerOy'  etc.,  is  suffi- 
ciently difficult  and  unsettled,  but  ■  it  does  not  seem 
possible  to  prove  either  annual  allotment,  joint  culti- 
vation, communal  ownership  of  land,  equality  among 
the  members  of  the  community,  or  even  the  exist- 
ence of  the  mark  itself  from  evidence  so  scanty  and 
so  uncertain  in  meaning. 

Certainly  the  entire  picture  of  Tacitus,  with  its 
slavery,  its  serfdom,  its  inequalities  of  rank,  wealth 

1  Tacitus  makes  frequent  use  of  the  expressions  "  per  singu- 
los  annos,"  "  singulos  per  annos,"  "  in  singulos  annos,"  when 
he  means  **  every  year."  Such  an  expression,  or  "  quotannis," 
he  would  doubtless  have  used  here  had  he  meant  annually. 
As  the  years  go  by  they  shift  the  arable  to  fresh  ground,  is 
evidently  what  is  meant.  Cf.  also  Caesar's  use  of  "  in  singulos 
annos"  when  he  means  annually.  —  De  Bel.  Gal.  VL  22. 

2  Tacitus  would  at  least  have  used  "  inter  se,'^ 


38      The  Mark  in  Europe  and  America. 

and  power,  lacks  the  elements  of  freedom,  self-govern- 
ment and  equality  which  we  have  been  led  to  expect 
in  the  mark.  Neither  the  communism  nor  the  simple 
democracy  are  borne  out  by  the  texts.  It  is  not  pre- 
tended that  there  was  no  democratic  element  in  early 
German  society.  There  was  such  an  element.  Yet 
that  society  was  permeated  with  inequalities.  Under 
the  free  was  a  servile  cultivating  population,  how 
great  in  numbers  we  do  not  know.  There  is  no  proof 
of  the  absence  of  property  in  land.  On  the  other 
hand,  the  very  absence  from  Tacitus  of  pointed  ex- 
planation of  so  remarkable  a  difference  from  the  Ro- 
man system  as  the  non-ownership  of  land  would  be, 
the  spirit  of  the  laws  in  regard  to  inheritance  among 
the  Germans,  together  with  divers  minor  hints  in  the 
text  itself,  render  it  strongly  probable  that,  as  soon 
as  the  tribes  settled  down  to  a  regularly  agricultural 
life,  there  existed  private  ownership  of  land,  or  at 
least  the  permanent  possession  of  a  more  or  less  defi- 
nite area  which  its  owner  either  cultivated  himself  or 
by  means  of  a  group  of  servile  dependents.  Indeed, 
that  scholarly  critic,  the  late  Prof.  W.  F.  Allen,  of 
the  University  of  Wisconsin,  who  accepted  the  mark 
theory,  was  forced  to  admit  ^  that  it  had  not  been 
proved  that  the  mark  was  to  be  found  in  Tacitus,  — 

1  Monographs,  p.  229. 


Discussion  of  the  Earlier  Evidence.      39 

in  fact  that  it  did  not  exist  in  Tacitus'  time,  though  he 

was  of  opinion  that  it  came  into  existence  soon  after. 

Nor,  if  we  turn  to  Caesar  a  hundred  and  fifty  years 

earlier,  do  we  find  it  there.     It  is  hardly  possible  so  to 

interpret  Caesar's  brief  sketches  of  what  he  saw  and 

heard  of  the  Germans  along  the  border,  as  to  find 

there  the  mark.     Whether  it  be  in  his  descriptions 

of  Ariovistus  and  his  followers,  who  boasted^  that 

they  had  not  been  under  a  roof  for  fourteen  years, 

or  in  his  description  ^  of  certain  tribes  in  perpetual 

war,  of  which  one  part  is  put  to  raising  crops  one 

year  and  the  other  sent  to  war,  exchanging  places 

for   the   next,  or  in  his  description  ^  of  the  chiefs 

arbitrarily  assigning  lands    and    *' compelling "    the 

tribes  to  move  from  place  to  place,  there  is  no  hint 

of  the  democratic  simplicity  of  the  mark  theory,  nor 

of  a  settled  agricultural  occupation  or  ownership  of 

a  definite  area  of  land  ;   but  there  is  a  picture  of 

1  De  Bello  Gallico,  Lib.  I,  §  36. 

2  Id.  Lib.  IV,  §  I. 

«  Caes.  De  Bel.  Gal.  II,  22.  "  Neque  quisquam  agri 
modum  certum  aut  fines  habet  proprios  ;  sed  magistratus  ac 
principes  in  annos  singulos  gentibus  cognationibusque  homi- 
num,  qui  una  coierunt,  quantum  et  quo  loco  visum  est  agri 
attribuunt,  atque  anno  post  alio  transire  cogunt."  It  is  to 
tribes  and  clans  that  lands  are  assigned.  Here  is  the  essence 
of  arbitrary  government.  The  chiefs  and  magistrates  assign 
what  they  please  and  compel  obedience. 


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40      The  Mark  in  Europe  and  America. 

unsettled  tribes  engaged  in  perpetual  war.  They 
were  "juet  emerging  from  a  nomadic  condition, 
since  they  had  not  secured  settled  homes/'  as  Cun- 
ningham puts  it.i  They  were  still  in  the  tribal 
state.  It  is  obvious  that  the  mark  which  we  have 
been  looking  for  is  not  in  Caesar. 

If  we   do  not   find  this  group  of  self-governing 
freemen,  endowed  with  equal  rights  and  enjoying  a 
common  and  equal  possession  of  the  soil,  in  Caesar 
and  Tacitus,  neither  do  we  find  it  in  the  next  three 
centuries,   for  they  are  as  barren  of  proofs  of  its 
existence  as  of  its  non-existence.     Evidences  of  its 
existence  must  next  be  sought  in  the  body  of  Ger- 
man law.      But   it   is  precisely  in  this  and  in  the 
other  documents  of  the  succeeding  centuries  that 
abundant  proof  of  the  existence  of  private  property 
in  land  and  landed  estates,  with  a  dependent  popu- 
lation of   cultivators    upon  them,   is   to   be  found; 
while  the  evidence  for  the  non-existence  of  a  self- 
governed  group  practicing  communal  ownership  of 
land  is  correspondingly  strong.     The  advocates  of 
the   mark  theory,    as    M.   Fustel   points  out,  have 
placed  great  stress  upon  the  existence  of  the  word 
''mark,''  and  yet  they  are  able  to  cite  no  document 
1  Growth  of  Eng.  Indust.  and  Commerce,  I,  p.  26. 


Discussion  of  the  Earlier  Evideitce.      41 

in  which   it   means  a  territorial  group  earlier  than 
the   1 2th  century.     They  argue  from  the  use  of  the 
word  in  the  1 2th  and  following  centuries  that  many 
centuries  earlier,  that  word  must  have  been  used  to 
describe  a  self-governing    communal  organization.^ 
''And  yet,"   says    M.  Fustel,   *^if  we  seek  in  the 
ancient  writers  of  the  first  centuries  of  the  Middle 
Ages,  a  phrase  which  tells  us  that  the  inhabitants 
of  every  village  held  a  territory  in  common,  or  any 
similar  phrase,    we  shall  not  find  it."  2     jhe  advo- 
cates  of  the  theory  would  perhaps  not  be  disposed 
to  deny,  what  is  undoubtedly  true,  that  the  primary 
signification    of    the   word   was    a    sign,    mark,    or 
boundary.     In  all  the  earlier  texts  it  is  thus  used 
to  distinguish  objects  possessed  by  one  person  from 
those  possessed  by  another,   the  boundary  line  or 
limits  of  governments  or  estates.     It  is  used  as  an 
exact  synonym  of  terminus^ 

1  "  Les  auteurs  ne  citent  aucun  texte  ant^rieur  au  douzi^me 
si^cle,  mais  tout  leur  syst^me  est  fond^  sur  ce  raisonnement; 
Les  textes  du  douzi^me  si^cle  et  des  ^poques  suivantes  montrent 
que  la  mark  est  une  terre  indivise  entre  les  habitants  d'un  vil- 
lage ;  or  ce  mot  mark  est  tres  ancien  dans  la  langue  germani- 

que  ;  done  I'indivision  de  la  7nark  est  infiniment  ancienne." 

Recherches  sur  quelque  problemes  d'histoire,  p.  322. 

*  Recherches,  p.  321. 

*  Thorpe,  who,  by  the  by,  does  not  seem  to  have  suspected 
the  existence  of  the  mark  community,  gives  the  same  explana- 


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M 
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42      Z;^  Mark  in  Europe  and  America. 

M.  Fustel  calls  attention  to  the  fact  that  in  the 
earliest  place  in  which  the  word  is  cited  (by  Sohm) 
viz.,  the  Edict  of  Chilperic  (anno  574)  it  is  on  a 
supposition  that  the  word  marias  of  the  text  should 
read  marcas,  and  that  it  should  be  translated  "the 
associates  of  the  mark''  ;  and  that  in  the  first  place 
where  the  word  actually  does  occur,  viz.,  in  a  Latin 
text  of  581,  it  means  the  frontier  of  a  kingdom.^ 
From  the  boundary  line  of  a  country  it  came  to 
mean  the  region  of  country  lying  along  the  border, 
as  its  later  use  in  such  expressions  as  the  "  marches 
of  Spain,'*  "the  marches  of  Scotland."  Like  the 
^ords  finis  and  terminus ^  from  meaning  the  bound- 
aries or  limits  of  a  province,  or  a  private  estate  the 

tion  of  the  word  so  far  as  the  early  English  evidence  is  con- 
cerned (Thorpe,  Ancient  Laws  of  England,  I,  pp.  33,  34). 
Earle,  after  an  extensive  study  of  Anglo-Saxon  documents, 
confirms  this  point  of  view.  He  says,  "  The  word  mearc  oc- 
curs repeatedly  in  the  documents,  but  never  in  the  sense  of 
the  area  of  occupation,  still  less  in  the  political  sense  of  the 
occupying  community.  What  Kemble  calls  its  restricted  and 
proper  sense  of  boundary  is  the  only  sense  it  bears  in  our 
records  "  (Earle,  Land  Charters  and  other  Saxonic  Documents, 
1888,  Introduction,  p.  xlv.). 

^  For  a  long  time  the  word  continued  to  be  used  in  this 
sense.  A  good  example  is  cited  in  the  Recherche,  p.  330.  A 
capitulary  of  811  is  cited,  "  Let  them  know  that  the  boundary 
(marcam)  is  at  the  Elbe  —  Let  them  know  that  the  Pyrenees  is 
their  boundary  line  (marcam)." —  Recherches,  p.  325. 


Discussio7i  of  tlie  Earlier  Evidence.      43 

word  marca  came  to  be  applied  to  the  estate  enclosed 
within  these  limits.^  In  the  8th,  9th  and  loth  cen- 
turies the  mark  is  the  same  as  the  villa.^  It  belongs 
to  a  single  owner  or  sometimes  jointly  to  two  or 
three  owners.  It  consists  of  cultivated  fields, 
meadows,  woods.  It  has  a  servile  population  upon 
it. 


It  was  the  purpose  of  M.  Fustel  de  Coulanges  to 
show  that  neither  the  word  mark  nor  any  synony- 
mous word  is  used  in  that  sense  in  any  of  the  docu- 
ments, that  the  words  coinmunia  and  allmende  in 
the  texts  have  a  different  sense  from  that  assigned 
to  them  by  the  theory,  that  all  the  documentary 
evidence  fails  to  furnish  proofs  of  the  existence  of 
a  self-governing  communal  organization,  and  that 
the  whole  of  the  evidence  proves  that  they  did  not 
exist.^  If  the  thing  existed  some  trace  of  it  ought 
to  be  found  in  early  German  Law.  It  is  not  found, 
M.    Fustel   declares,    in  the  law  of   the  Visigoths, 

^  Fustel  cites  an.  example  from  the  Diplomata  (ed.  Pardes.) 
II,  442,  in  whicR  it  is  said  that  the  mark  {marca)  Gerlaigoville, 
in  Alsace  contains  a  house,  eight  acres  of  arable  land,  some 
meadow  and  some  woods,  and  all  was  the  property  of  a  woman 
named  Eppha,  who  had  received  it  as  a  dowery.  —  Recherches, 

P-  337. 

2  Recherches,  p,  340. 

•  Cf.  Origin  of  Property  in  Land,  Introduction,  p.  xix. 


;ri 


y   • 


44      The  Mark  in  Europe  and  America. 

nor  in  the  law  of  the  Lombards,  nor  in  that  of 
the  Thuringians,  nor  in  that  of  the  Frisians,  nor 
in  that  of  the  Saxons,  nor  in  the  Salic  Law.^  The 
word  marca  is  found  in  the  law  of  the  Alamanni  and 
in  that  of  the  Bavarians;  but  here  it  is  an  exact 
synonym  of  terminus  and  is  used  interchangeably 
with  it.  The  Bavarian  Law  mentions  a  dispute 
between  two  neighbors  who  have  a  common  boundary 
and  calls  them  com-marcani,  which  Maurer  thought 
must  mean  the  co-markmen  of  which  he  tells  us 
elsewhere,^  but  a  little  later  on  in  the  same  law  we 
are  told  that  each  disputant  as  to  the  boundary  line 
must  make  a  declaration  that  he  has  inherited  his 
lands  from  his  ancestors  and  if  there  is  not  sufficient 
evidence  in  the  landmarks  which  the  trees  and 
other  natural  objects  furnish  then  it  must  be  decided 
by  judicial    combat   between  the  disputants.^      M. 

1  Recherches,  p.  326.     Origin  of  Property  in  Land,  p.  11. 

2  "  Die  Genosse  selbst  hiessen  consortes,  Mitmarken  oder 
commarchani." — Maurer,  Einleitung,  p.  140. 

* "  Quoties  de  terminis  fuerit  orta  contentio,  signa  quae 
antiquitus  constituta  sunt  opertet  inquirere,  id  est  aggerem 
terrae  quern  propter  lines  fundorum  antiquitus  apparuerit  fuisse 
congestum,  lapides  etiam  quos  propter  indicium  terminorum 
notis  evidentibus  sculptis  constiterit  esse  defixos  ...  in  arbo- 
ribus  notas  quas  decorvos  vocant,  si  illas  antiquitus  probant 
esse  incisas."  —  Baiuwariorum,  XII,  4. 

"  Quoties  de  commarcanis  contentio  oritur,  ubi  evidentia 
signa  non  apparent  in  arboribus,  aut  in  montibus  nee  in  flumin- 


Discussion  of  the  Earlier  Evidence.      45 

F'ustel  again  calls  attention  to  the  fact  that  the 
case  cited  by  Maurer  in  the  Ripuarian  Law  not 
only  does  not  prove  communism  but  does  prove 
private  property  in  land.  "  If  any  one  (§  60)  buys 
a  small  estate,  etc.  —  If  a  proprietor  encroaches  on 
a  neighboring  proprietor,  etc.  —  The  boundary  (ter- 
minatio)  of  the  two  estates  is  formed  by  distinct 
land-marks,  etc.  —  If  a  man  overstep  this  boundary 
(marca)  he  shall  pay  a  fine.''^  In  none  of  these 
laws,  is  there  found  any  trace  of  community  of 
property  or  of  an  organized  self-governing  group  of 
freemen.  In  all  there  is  evidence  of  private  prop- 
erty. It  is  evident  that  men  own  cultivated  fields, 
vineyards,  pastures,  woods.^  They  may  sell,  give 
away  or  bequeath  ^  any  or  all  of  these.  Punish- 
ment is  ordained  for  those  who  remove  landmarks. 
"The  whole  body  of  German  law  is  in  fact,  a' law  in 
which  private  property  reigns  supreme."* 

ibus."  —  Id.  XII,  8.  "Si  probatis  nusquam  inveniri  dinoscitur 
.  .  .  cui  Deus  dederit  victoriam,  ad  eum  designata  pars  perti- 
neat."— Id.  XII,  8.  Quoted  by  Coulanges.  Cf.  also  Leges 
Alamannorum  Tit.  LXXXIV;  Walter  ed.  (1824). 

^  Quoted  in  Origin  of  Property  in  Land,  p.  1 2. 

^  "  Si  quis  in  sylva  alterius  materiamen  furatus  fuerit,  etc." 
—  Lex  SaHca  Tit  VIII.  iv.  Walter,  ed.  Corp.  Jur.  Germ. 
Antiq. 

«  On  the  subject  of  inheritance,  see  Lex  Salica,  Tit.  LXII, 
I,  2,  3,  4,  5,  6.     Walter  ed.  Vol.  I. 
*  Origin  of  Property  in  Land,  p.  1 7. 


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46      The  Mark  in  Europe  and  America. 

A  very  large  number  of  the  references  which 
Maurer  employs  to  prove  the  existence  of  commU' 
nal  society  are  to  the  collections  of  charters  from 
the  8th  to  the  14th  century.  They  are  in  fact  deeds 
of  private  property.  Maurer  and  his  followers  infer 
the  existence  of  the  free  village  community  not 
only  from  the  use  of  the  words  marca^  commarcani^ 
consorteSy  etc.,  but  also  from  the  occurrence  of  the 
words  commtmia  and  allmende  in  these  documents. 
There  seems  to  be  some  foundation  for  the  com- 
plaint of  M.  Fust  el  that  not  only  are  words  and 
phrases  seized  upon  to  the  exclusion  of  abundant 
evidence  in  the  entire  documents  to  the  contrary 
of  the  contention,  but  that  these  words  are  not  as- 
signed their  plain  meaning  at  that  period  and  in  the 
given  connection.  For  example  commtmia.  In  the 
deed^  of  Amalfrid  and  his  wife  Chilberta  (anno 
687),  in  which  they  make  a  gift  to  the  monastery 
of  St.  Sithin,  the  instrument  goes  on  to  say  that 
the  domain  is  given  "in  all  its  integrity,  compris- 
ing lands,  mansi,  buildings,  slaves,  fields,  forests, 
meadows,  pastures,  waters  and  watercourses,  mills, 
commtmia,  etc.,  without  any  reserve."  Whatever 
commtmia  is,  it  is  owned  and  deeded.     It  is  hardly 

^  Diplomata,  ed.  Pard.,  No.  408.  Cited  in  Recherches, 
p.  341. 


Discussion  of  tJie  Earlier  Evide^ice.      47 


the   Teutonic   mark    with   its    organized   group   of 
Teutonic  freemen  that  is  thus  owned  and  deeded. 
So  allmende,  which  occurs  in  no  document  before 
the  1 2th  century,  is  but  another  word  for  communia. 
In  a  deed  of   11 50,   cited  by  Maurer,  the  owners 
give  to  a  monastery  an  estate  and  their  rights  to 
a  "common   forest  which  the  inhabitants  call  all- 
mende,'' and  in  which  they  have  the  right  of  gather- 
ing wood  and  feeding  hogs.     But  the  deed  further 
explains  that  this  forest  had  belonged  to  the  ances- 
tors of  the  grantors,  and  that  these  had  given  to 
their   tenants    certain   rights   of    usage   which   the 
present  grantors  wish  to  confirm  to  them  in  per- 
petuity.^    Professor  Kovalevsky,  formerly  professor 
of  Jurisprudence  in  the  University  of  Moscow,  an 
enthusiastic  discoverer  of  traces   of   the   primitive 
village     community,    complains  ^    that    M.     Fustel 
refused  to  recognize  in  these  documents  the  com- 
munism  which  is  implied   in  the  equal  enjoyment 

1  An  illustration  of  the  use  of  silva  communi  may  be  found 
in  the  Lex  Ripuaria,  Tit.  LXXVI,  *'  If  any  one  shall  have 
taken  from  the  common  forest  of  the  King  or  of  any  body 
else,  etc:'  Evidently  a  forest  in  which  the  king  or  other  person 
granted  communal  privileges  of  some  kind. 

2  "  Quelq'uns,  comme  M.  Fustel  de  Coulanges  par  exemple, 
refusent  de  reconnaitre  k  ces  faits  un  caractere  de  commu- 
nisme."  —  Kovalevsky:  Tableau  des  origines  et  de  revolution 
de  la  famille  et  de  la  propridt^  (1890),  p.  i74- 


.   r.   ; 

If! 


^!ll 


il!( 


ill 


i 


48      The  Mark  in  Europe  a7td  America. 

of  certain  rights  of  pasturage   and   of  the  use  of 
forests.     M.  Fustel  surely  does  recognize  the  com- 
munal character  of  these  usages,  but  it  is  a  commu- 
nism  of  dependents  and  tenants,  not  of  self-governed 
proprietors  of  an  undivided  and  undivid^ble  mark. 
Kovalevsky   implies    that    these    common    tenant- 
rights  ^  are  not  necessarily  derived  from  a  previous 
regime  of  individual  ownership.     This  is  of  course 
true,  but  the  point  to  observe  is  that  they  have  been 
taken  as  the  absolute  proof  of  the  non-existetice  of 
individual  otvnershipy  which  they  certainly  are  not. 
M.  FusteFs  contention  is  that  wherever  in  the  earlier 
documents  words  implying  community  of  rights  in 
land  occurs,  the  evidence  of  the  documents  them- 
selves is  that  this  community  is  (i)  either  the  joint 
and  undivided  ownership  of  a  forest  by  two  neigh- 
boring proprietors,  or  (2)  a  joint  ownership  of  several 
proprietors  of  the  same  estate,^  or  (3)  the  common 
enjoyment  by  a  body  of  tenants  of  a  portion  of  an 
estate  either  gratuitously  or   for  a  rental.^     There 

^  "  Certains  f aits  ne  d^rivant  pas  ndcessairement  d'une  pro- 
priety individuelle  antdrieure." — Ibid.  p.  174. 

2  Among  the  numerous  illustrations  of  this,  an  excellent  one 
is  cited  by  Mr.  Ross  from  the  Lauresham  Codex :  "  De  ilia 
silva  communis  quantum  jure  hereditario  ad  me  pertinere 
videtur."  — Early  Hist,  of  Land-holding  among  the  Germans, 
p.  38. 

*  Recherches,  p.  354. 


|! 


Discussion  of  the  Earlier  Evidence.      49 

are   abundant    examples   of    the   cession   of   entire  , 
estates  with  their  servile  populations  upon  them. 
"  Dono  rem  meam  in  pago  illo,  id  est  mansos  tantos 
cum   edificiis  supra  positis    una  cum  terris,   silvis, 
campis,  pratis,  pascuis,  commiiniisy  necnon  et  quid- 
quid  ibidem  comrnanentibiis  vel  aspicientibus,  omnia 
et  ex  omnibus,  quidquid  in  ipso  loco  mea  videtur 
esse  possessio  vel  dominatio.'*     From  the  12th  cen- 
tury forward   communities   are    occasionally   to  be 
met  with,  such  as  that  of  the   12th  century  cited 
by   Kovalevsky,  where    the    inhabitants  of  a   villa 
owned  and  enjoyed  a  forest  in  which,  it  is  declared, 
nobody  has  any  private  property  but  all  own  it  in 
common.^     But  it  is  well  to  observe,  not  only  the 
lateness  of  the  date,  but  that  these  may  equally  well 
be  explained  as  originating  in  dependent  communi- 
ties cultivators  which  were  confessedly  wide-spread 
long  before  that  period.     Furthermore,  the  very  lan- 
guage of  the  document  implies  a  regime  of  private 
property.     It  is  worth  while  to  remember  that  the 
whole  body  of  documents,  from  the  earliest  period 
from  which  evidence  has  been  gathered  in  support 
of    this     peculiar    communal     institution,     contain 

1  Tableau  des  origines  et  de  revolution  de  la  f amilie,  p.  1 78. 
This  and  similar  cases  cited  also  by  Fustel  in  Recherches,  p. 

350- 


ti 


SI 


I      I 


50      The  Mark  in  Europe  and  America. 

abundant  and  undeniable  proof  of  the  individual 
ownership  of  land,  —  a  fact  which  certainly 
weakens  the  dogma  that  "the  original  basis  upon 
which  all  Teutonic  society  rests  "^  is  com- 
munal. 

It  is  with   evident   relish   that   M.    Fustel   calls 
attention  to  the  fact  that  Maurer  and  his  disciples 
have  referred  so  abundantly  to  the  Traditiones,  or 
collections  of  deeds  of  private  property,   to   estab- 
lish   the    universal    existence    of    communal    prop- 
erty.      "Ten   thousand   documents  of  gifts,  wills, 
sales   or   exchanges,"    he    exclaims,    "which    form 
an   absolute    proof    of  a   system   of  private   prop- 
erty, out    of   which  eighteen   or   twenty  are  taken 
and  misinterpreted  to  prove  that  it  did  not  exist." 
"  Maurer  has  not  furnished  us  with  a  single  proof, 
a  single   quotation,  in   support   of   the   community 
or   association    of    the    mark   that   he   pictures   to 
himself  as  existing  when  history  first  begins.     Go 
over  the  innumerable  quotations  at  the  bottom  of 
his  book;    more  than   two-thirds  relate  to  private 
property;     of   the    rest,    some    hundreds    are    con- 
cerned  with    minor   points   unconnected    with   the 
subject;    not  a  single  one  touches  the  main  ques- 
tion;   or   if    there    are    any    which    at    first    sight 

1  Kemble,  Saxons,  I,  p.  53. 


Discussion  of  the  Earlier  Evidence.      5 1 

appear  to  do  so,  the  slightest  examination  shows 
that  they  have  been  misunderstood  or  misinter- 
preted."^ 

Very   similar   were   the    conclusions    arrived   at, 

quite  independently,  by  Mr.   Denman  Ross,  whose 
work,  based  upon  a  thorough  examination  of  the 
documentary  evidence,  deserved  more  attention  than 
it  has  obtained.     The  scant  consideratior»vhich  his 
writings  received  may  have  been  due,  in  part,  to  a 
certain   temerity   which    he    displayed   in   refusing 
allegiance  to  a  theory  which  had  received  such  un- 
questioning acceptance  by  historians  whose  names 
the  world  delights  to  honor.     With  such  support  to 
the  theory,  it  was  easier  to  pass  by  an  innovator 
than  to  refute  the  force  of  his  reasoning.     Perhaps 
the  confident  tone  in  which  he  asserted  his  con- 
clusions  that   "the   mark   is  the    manor,   first  and 
last ;  that  the  lord  of  the  mark  was  the  lord  of  the 
manor,"  2  and  the  bold  attempt,  not  only  to  destroy 
the  idol  of  the  "Golden  Age"  of  Teutonic  history, 
but  to  reconstruct  the  complex  history  of  that  period, 
are  partly  responsible  for  a  certain  lack  of  attention 
to  the  evidence  which  Mr.  Ross  has  brought  to  bear 
upon  the  subject. 

1  Origin  of  Property  in  Land,  p.  61. 

2  The  Mark  and  the  Manor  (1879). 


m 


it 


•■,f 


52      The  Mark  in  Europe  and  America. 

The  result,  then,  so  far  as  the  continental  evidence 
is  concerned,  is  to  establish  the  existence  of  private 
property  as  far  back  as  there  is  any  documentary 
evidence,  roughly  from  the  5th  century  onward;  to 
show  the  presence  of  large  estates  with  a  dependent 
population  of  cultivators  upon  them;  to  show  that 
the  estates  with  their  dependent  population  were 
bought    ^d    sold,  given   away  and   bequeathed;  to 
show  that  communal  privileges  in  forest  and  pasture 
were  granted  to  tenants  by  the  proprietors ;  and  to 
show   that    these   communal    privileges    sometimes 
hardened  into  rights.     It  would  remain  for  the  ad- 
vocates of  the  mark  theory  to  show  that  alongside 
of  these  there  existed,  in  the  earlier  period,  groups 
exercising  communal  ownership  and  self-government ; 
that   these   had    an    independent   origin;    that    the 
manorial  estates  grew  out  of  such  groups ;   and  that 
the  mark  had  become  the  manor  before  there  was 
any  documentary  evidence  bearing  upon  the  case, 
or  else  that   the   documents  prove  their  contempo- 
rary existence. 

The  earlier  evidence,  so  far  as  England  is  con- 
cerned, is  much  of  the  same  character  as  that  of 
the  continent.  Attention  has  been  called  to  the  fact 
that  the  laws  of  Ethelbert  (597-616)  show  the  exist- 


Discussion  of  the  Earlier  Evidence.      53 

ence  of  private  property  at  that  date.^  Whatever 
may  have  been  the  character  of  the  estates,  the  hams 
or  tuns,  there  can  be  no  question  as  to  their  indi- 
vidual ownership.  "  If  a  man  drink  at  a  man's  haniy 
etc.  If  in  the  king's  tun  a  man  slay  another,  etc. 
If  in  an  earl's  tun  a  man  slay  another,  etc.  If  a 
man  into  a  man's  tun  enter,  etc."^  While  it  has 
been  noticed,  the  important  bearing  of  this  fact  of 
the  individual  ownership  of  land,  which  is  attested 
by  the  earliest  Saxon  documents,  does  not  seem  to 
have  been  sufficiently  dwelt  upon.  From  the  very 
first  charter  given  in  the  collections  of  Kemble^ 
and  Earle,*  that  of  Ethelbert,  a.d.  604,  '' Idoque  tibi 
sancte  Andrea y  tuaeque  ecclesiae  .  .  .  trade  aliquan- 
tulum  telluris  mei.  Hie  est  terminus  mei  doni,  &c.y' 
onward,  we  have  abundant  documentary  evidence 
of  the  ownership  of  estates,  and  of  their  transfer 
with  all  their  belongings.^     It  has  been  pointed  out 

^  Seebohm's  English  Village  Community,  p.  1 74. 
2  Laws  of  Ethelbert     See  Thorpe's  Laws  of  Ancient  Eng- 
land. 

«  Kemble,  Codex  Diplomaticus,  I,  i. 

*  Earle,  Land  Charters,  p.  3. 

*  A  good  example  is  in  the  deed  of  Wulfhere,  674:  "...  dabo 
Berhferthe  propinqus  mens  aliquam  partem  agri  in  hereditatem 
perpetuam,  id  est.  v.  manentes  .  .  .  cum  campis  et  siluis  et 
omnibus  utensilibus  rebus  ab  isto  agro  pertinente;  aeternalite 
ac  perseuerabiliter  possideat  abendi  vel  dandi  cuicumque  eligere 


I 


rtl 


''iW 


54      The  Mark  in  Europe  and  America. 

that  not  only  was  the  soil  transferred,  but  the  cul- 
tivators upon  it,  and  that  these  were  described  by 
the  same  terms  as,  in  contemporary  use  upon  the* 
continent,  were  applied  to  serfs  bound  to  the  soil.^ 
We  are  told  by  Bede  that  King  Oswy  (circ.  655) 
in  his  war  against  Panda,  vowed  that  in  case  he 
should  be  successful  he  would  give  twelve  manorial 
estates  ^  for  the  founding  of  a  monastery.  A  little 
later  we  are  told  that  he  fulfilled  his  vow  and  that 
the  estates  had  ten  families  each,  one  hundred  and 
twenty  in  all.^  The  Abbess  Hilda,  having  acquired 
a  possession  of  ten  families*  at  the  place  called 
Streanaeshalch,  founded  there  a  monastery.  King 
Ethelwalch  gave  to  the  prelate  Wilfrid  the  land  of 

voluerit.     Hoc  agrum  liberatum  est  cum  xxx.  mancusis  cocti 

auri,  et  semper  liber  permaneat  omnibus  habentibus,  etc." 

Earle,  Land  Charters,  p.  5 ;  or  in  the  deed  of  Aethelbehrt  given 
in  Kemble's  Codex  Diplomaticus,  I,  4,  "opituli  ei  villam 
nomine  Sturigno,  alio  dictam  Cistelet,  cum  mancipiis,  siluis, 
cultis  vel  incultis,  pratis,  pasquis,  paludibus,  fluminibus,  et  con- 
tiguis  ei  maritimis  terminis,  eam  ex  una  parte  cingentibus, 
omnia  mobilia  vel  immobilia,  etc.,  etc." 

1  Cf.  Ashley's  Introduction  to  Origin  of  Property,  xv.  Also 
discussion  of  tributarii  by  L.  Hutchinson  in  Qr.  Jr.  Economics, 
VII,  205. 

2  "  Duodecim  possessiones  praediorum  ad  construenda  monas- 
teria  donaret."  —  Bede,  Eccles.  Hist,  III,  xxiv. 

*  "  Singulae  vero  possessiones  decem  erant  familiarum,  id 
est,  simul  omnes  centum  viginti." —  Ibid. 

^  "Comparata  possessione  decem  familiarum." — Ibid. 


Discussion  of  the  Earlier  Evidence.      55 

eighty-seven  families^  to  maintain  his  company  of 
followers  who  were  in  banishment  in  a  place  which 
was  called  Selsey.  One  might  imagine  that  ''the 
land  of  eighty-seven  families  '*  was  merely  the  meas- 
ure of  the  land,  the  land  capable  of  supporting  that 
many  families,  were  we  not  distinctly  told  that  the 
king  gave  all  the  property  there  ''with  the  lands 
(estates)  and  with  the  men,''^  ^nd  that  among  these 
there  were  two  hundred  and  fifty  slaves,  male  and 
female,  whom  the  good  prelate  freed  from  bodily 

servitude. 

Caedwalla,  though  a  heathen,  had  bound  himself 
by  a  vow  to  give  one-fourth  of  the  lands  of  the  Isle 
of  Wight  to  religious  purposes.  The  measure  of 
the  island  is  of  1200  families,  and  so  the  bishop 
had  given  to  him  the  land  of  300  families.^  The 
Anglo-Saxon  version  describes  the  extent  of  land  as 
so  many  hides.  The  Anglo-Saxon  Chronicle  records 
that  the  king  gave  Columba  (about  565)  the  island  of 
li,  wherein  are  five  hides;  and,  again,  that  Kenwalk 
gives  Cuthred  3000  hides  of  land.     Though  it  might 

1  This  mode  of  reckoning  land  by  the  number  of  families 

is  in  itself  significant. 

2  "  lUi  rex  cum  praefata  loci  possessione,  omnes,  qui  ibidem 
erant,  facultates  cum  agris  et  hominibus  donavit." — Bede,  iv, 
ch.  13,  §  291. 

»  Ibid,  iv,  16. 


W  ! 


I 


56      T^  Mark  m  Europe  and  America. 

be  maintained  that  these  do  not  necessarily  mean 
the  holdings  of  manorial  estates,  together  with  the 
services  of  the  holders,  and  that  they  merely  indi- 
cate a  measure  of  land,  yet  they  indicate  the  great 
prevalence  of  private  landed  property,  and  that  in 
the  form  of  large  estates. 

Kemble  himself  admits  1  that  lands  were  conveyed 
by  charter  from  the  time  of  the  introduction  of  Chris- 
tianity (597),  and  is  not  disposed  to  deny  that  they 
were  conveyed  before  that  time  by  symbols  in  the 
presence  of  witnesses.     It  would  be  incredible  that 
the  owning  and  disposing  of  estates  with  their  cul- 
tivators, should  suddenly  spring  into  existence  with 
the  coming  of  Augustine,  though  he  may  have  in- 
troduced the  written  charter.     It  is  significant  that 
with  the  first  documentary  proof,  private  ownership 
in  land  seems  to  be  a  fixed  institution.     This,  taken 
in  connection  with  the  earliest  continental  evidence 
bearing  upon  the  case,  renders  it  highly  probable 
that  the  Saxons  brought   a   knowledge   of  private 
landed  property  and  serfdom  from  the  continent.     ■ 
Beneath  the  class  of  dependent  cultivators,  who 
were  bound  to  the  soil,   and  whom  we  ordinarily 
speak  of  as  serfs,  it  is  evident  that  there  was  a  slave 
class  who  were  mere  chattels,  bought  and  sold  at  the 

^  Codex  Diplomaticus,  Introduction. 


Discussion  of  the  Earlier  Evidence.      57 


will  of  the  master.  There  are  abundant  proofs  of 
this.  Bede  furnishes  an  example,  in  addition  to  the 
one  already  cited,  in  the  passage  where  Bishop  Aidan 
is  commended  for  using  the  riches  bestowed  on  him 
in  ransoming  such  as  had  been  wrongfully  sold  as 

« 

slaves.^ 

It  was  under  the  stress  of  such  evidences  of  prop- 
erty and  social  inequality  that  Professor  Allen,  who 
accepted  the  free  village  community  theory,  but 
who  could  not  find  it  in  Caesar  or  Tacitus,  was 
constrained  to  admit  that  it  had  been  proved  that 
it  did  not  exist  in  the  5th  century .2  "The 
free  village  community,  therefore,"  says  he,  "is 
a  natural  and  probable  connecting  link  between 
what  we  know  to  have  existed  in  the  ist  and  what 
we  know  to  have  existed  in  the  5th  centuries/*^  It 
is  well  to  notice  that  this  pushes  the  free  village 
community  back  into  the  narrow  confines  of  the 
three  or  four  centuries  succeeding  the  first,  into  a 
period  where  there  is  scarcely  a  ray  of  historical 

1  "  Redemptionem  eorum  qui  injuste  fuerat  venditi."  —  Bede, 

••• 
111,  5. 

The  examples  are  abundant.     "  If  a  man  buy  a  maiden  with 

cattle,  let  the  bargain  stand,  if  it  be  without  guile." — Laws  of 

Ethelbert,  ^T,     See  Thorpe's  Ancient  Laws,  p.  9. 

2  Monographs,  p.  236. 
•  Ibid.  p.  238. 


!l 


m 


I  ' 


58      TAe  Mark  m  Europe  and  America. 

light.     Of  that  period  a  word  or  two  may  be  said 
hereafter.     It  must  be  granted,  however,  that  while 
the  earliest  documents  reveal  the  existence  of  the 
ownership  of  land  and  of  serfdom,  they  do  not  show 
the  non-existence  of   some  such  free  communities; 
but   they   do   make  it  incumbent   upon  those  Vho 
assert  the  existence  of  such  bodies  to  make  good 
their  assertions  with  proofs.     There   is  other  evi- 
dence which  must  not  be  neglected.     The  inequali- 
ties  of  wealth  and  rank,  the  influence  of  noble  blood 
and  military  prowess,  and  the  substructure  of  serf- 
dom, which  are  revealed  to  us  by  Tacitus,  have  been 
adverted  to.     When  next  the  light  of  history  falls 
upon  Teutonic  society  we  again  see  it  permeated 
with  the  essentials  of  an  aristocratic  state.^     We  see 
again  the  king,  the  noble,  the  serf,  the  slave.     We 
see  wealth  and  power  accumulated  in  the  hands  of  a 
single  individual.     The  inference  is  not  unfair  that 
a  similar  state  of  society  prevailed  during  the  inter- 
vening  period,    even    if    it    were    possible   for   an 

^  Bede  is  full  of  evidence  as  to  the  nobility,  and  the  concen- 
tration of  wealth  and  power,  e.  g.,  Book  III.,  24,  27,  30.  It  is 
remarkable  that  there  is  not  similarly  clear  evidence  in  regard 
to  the  alleged  self-governed  village  communities.  Even  the 
evidence  in  regard  to  the  inequalities  which  is  afforded  by  the 
laws  in  regard  to  wergild  is  proof  of  an  aristocratic  and  not  of 
a  democratic  structure  of  society. 


Discussion  of  the  Earlier  Evidence.      59 

agrarian  system  to  spring  up,  flourish  and  decay  in 
so  brief  a  time.  Indeed,  it  is  hardly  possible,  even 
if  it  were  proved  that  there  were  instances  of  a  free 
communal  mark  at  the  beginning  of  English  history, 
to  believe  that  it  was  the  characteristic  form  of  the 
governmental  or  agrarian  system.  Much  more  in 
accordance  with  the  facts  appears  to  be  the  view  of 
Palgrave,  a  writer  on  constitutional  history  who 
thouerh  he  wrote  before  the  doctrine  of  Kemble  and 

o 

Maurer  had  made  its  appearance,  is  not  so  anti- 
quated as  not  to  be  studied  with  profit.  He  says 
that  from  the  dawn  of  Anglo-Saxon  history  "Aris- 
tocracy was  the  prevailing  principle  of  the  Anglo- 
Saxon  government;  and,  though  mere  nobility,  that 
is  to  say,  nobility  unaccompanied  by  landed  prop- 
erty, did  not  confer  authority,  still  the  main  privi- 
leges of  the  Patrician  were  the  results  of  blood  and 
parentage.'*^  Again  the  same  author  tells  us^ 
that  "according  to  the  policy  which  appears  to  have 
prevailed  amongst  all  the  Teutonic  nations,  the 
Anglo-Saxons  were  divided  into  Castes  whose  rank 
was  the  measure  of  their  estimation  before  the  law, 
and  from  whose  various  privileges  the  entire  system 
of  the  laws  and  constitution  was  deduced,'*  an  asser- 

1  Palgrave,  Eng.  Commonwealth,  I,  2. 

2  Ibid.  I,  9. 


1-1  \ 

m 


"^ 


m 


w 

60      T/ie  Mark  {71  Europe  mid  America. 

tion  which  Anglo-Saxon  law  abundantly  verifies.^ 
And  it  is  worth  while  to  remark  in  this  connection 
upon  the  curious  fact  that  those  earlier  explorers 
in  the  regions  of  English  constitutional  history, 
Thorpe,  Palgrave,  and  Hallam,^  altogether  failed 
to  discover  an  institution  at  once  so  unique  and 
so  much  in  sympathy  with  the  tendency  of  modern 
thought  .3 

^Earle's  Land  Charters  (1888),  introduction,  xlvi:  "The 
lord  of  the  manor  is  an  essential  member  of  the  original  settle- 
ment." Pollock,  The  Land  Laws,  p.  11:  "  Even  the  personal 
freedom  of  the  old  days  was  the  right  of  a  privileged  class." 

2  For  Hallam's  influence  on  historical  teaching  see  Ashley, 
Economic  Review  (April,  1 893). 

«  Kemble  accounts  for  this  failure  on  the  ground  that  his 
predecessors  had  made  of  themselves  "  degenerate  Greeks  and 
enervated  Romans,"  and  had  rendered  themselves  unable  to 
understand  the  peculiarities  of  Saxon  institutions.  —  Cod.  Dip. 
Intro,  iii. 


I ; 


hi 


;     li 


' 


■■ 


IV. 


DISCUSSION    OF    THE    LATER   EVIDENCE. 

LEAVING  then  for  the  present  the  earlier  evi- 
dence, for  after  all  it  was  never  upon  contem- 
porary evidence  that  the  theory  was  made  chiefly  to 
j-est,  —  let  us  turn  to  the  later  evidence  and  to  the 
second  line  along  which  modern  discussion  has  pro- 
ceeded. The  stronghold  both  for  the  establishment 
and  the  support  of  the  mark  theory  has  been  the 
soil  itself  and  the  facts  in  connection  with  it  which 
are  patent  to  the  eye  of  every  observer.^  These 
facts  and  the  documents  of  the  past  five  or  six  hun- 
dred years  are  taken  as  the  basis  upon  which  an  in- 
ference is  to  be  made  in  regard  to  the  state  of  facts 
some  thousand  years  earlier.  The  method  is,  ''  Here 
are  some  matters  of  common  observation  and  some 
facts    of    recent   history.     Whether   the   result   of 

1  And  how  slender  a  support  this  is  may  be  inferred  from 
the  language  of  Freeman  :  "  It  is  as  much  as  we  can  do  to 
trace  out  some  faint  footsteps  of  the  ancient  system,  such  as 
we  can  see  in  common  lands,  in  some  form  of  communal  in- 
stitutions, in  petty  and  half  obsolete  local  tribunals."  —  Nor- 
man Conquest,  I,  p.  86. 


Hi 


■  r  J 


! 


62      Tlie  Mark  in  Europe  and  America. 

growth  or  decay,  we  find  their  origin  in  the  past. 
What  was  that  origin  ?  "     The  question  is  perfectly 
fair,  and  the  method  is  perfectly  legitimate,  especially 
if  the  phenomena  are  observable  over  a  long  period ; 
for  then  it  is  possible  to  notice  the  trend  of  events. 
Where   the  change   is   so  slow,  as  it  is  in  agrarian 
systems,    the   conditions   are    especially    favorable. 
And  yet  the  dangers  are  obvious,  and  have  again  and 
again  been  pointed  out.     Here  is  a  certain  effect ; 
what  was  its  cause  a  thousand  years  earlier  ?     Like 
every  resultant  it  has  a  large  number  of  possible 
components.      It  is   particularly   desirable   that   in 
looking  upon  the  phenomena  as  remains,  there  should 
not  have  been  formed  in  the  mind  a  picture  of  the 
thing  of  which  these  are  the  remains.     But  that  is 
just  the  state   of   mind  that  a  theory,  when  once 
^accredited,  is  likely  to  bring  about.     It  is  also  de- 
sirable that  the  results  be  constantly  compared  with 
the  known  facts  of  the  period  which  it  is  proposed  to 
reconstruct.      The   contrivers   of  the   mark  theory 
said,  "  Here  is  a  curious  system  of  intermixed  own- 
ership of  land.     Here  are  certain  tracts  of  land  of 
which   many   people   have    a    common   enjoyment. 
Here  are  certain  rights  and  duties  of  tenants  in  con- 
nection with  the   manorial   courts.      These   things 
might  have  had  their  origin  in  a  free  and  self-gov- 


Discussion  of  the  Later  Evidence.        63 
emed   communal   group.     They  did  have  such  an 


ongm. 


It  was  at  the  time  when  this  conclusion  was  at 
the  high  tide  of  its  popularity  that  Mr.  Seebohm 
gave  to  the  world  the  results  of  his  studies.^  Even 
in  this  our  day,  when  the  seeker  after  scientific 
accuracy  is  supposed  to  be  coldly  indifferent  to 
current  opinion,  or  any  other  opinion,  it  required 
considerable  courage  on  the  part  of  one,  even 
of  Mr.  Seebohm' s  reputation,  to  present  studies 
which  seemed  at  variance  with  the  popular  cur- 
rent. 

Beginning  with  the  remains  of  the  open-field  sys- 
tem as  visible  in  the  soil  of  England  to-day,  and  as 
discovered  in  a  map  and  court  records  of  an  Eng- 
lish township  of  the  present  century,  he  gathers  up 
enough  threads  to  enable  his  reader  to  understand 
the  land  divisions,  the  terminology,  and  the  mode 
of    cultivation    of    the    manorial    system.      There 
had  never   been    so  clear   and    complete   a   state- 
ment of   the    system,  and    to    American    readers, 
especially,   Mr.    Seebohm' s    description   was    very 
helpful. 

>  Seebohm,  The  English  Village  Community,  London,  1883. 


lil 


II 

ttl 


!l 


ir%\ 
W 


i 


VA 


I  I! 


>  I 


|l| 


|l|!W 


64      Tlie  Mark  in  Europe  and  America. 

Around  the  English   village,^  which    was    com- 
monly  under  a  manorial  lordship,  lay  two  or  three, 
"  common,"  "  commonable  "  or  "  open  fields."    These 
fields  constituted   the  arable  lands  of  the  village 
and   were   made  up  of  divisions,  sometimes  called 
"shots",  or  "furlongs,"  which  in  turn  were  made 
up  of  acre   strips,  separated   from    each   other  by 
turf  balks.     Originally  the  holding  of  any  one  indi- 
vidual was  made  up  of  scattered  acre  or  half  acre 
strips    throughout  the   two   or  three   fields   of  the 
manor.     It  was  the  object  of  the  Enclosure  Acts » 
to  change  this  awkward  system.      The  four  thou- 
sand Enclosure  Acts,  between  1760  and  1844,  show 
that    this    was    practically    the    universal    form    of 
agricultural  operations  at  an  earlier  period.     By  a 
chain  of  evidence  the  same  system  is  traced  back  to 
the  time  when  the  feudal  system  was  at  its  height, 
and  the    open    field    cultivation   and   the   manorial 
regime   are   shown   to   be  intimately  connected,  if 
not  one  and  the  same  thing.      Perhaps  all  would 
readily  admit  that,  during  the  feudal  period,  the 
manorial  system  Ayas  practically  the  universal  method 
of  cultivation  throughput  England.     It  was,  as  we 
Americans  would  say,  the  method  by  which  England 
was  "farmed."     Through  the  changes  in  tenancy 


1  Eng.  Village  Com.,  pp.  7,  8. 


«  Jbjd.  p,  14. 


Discussion  of  the  Later  Evidence.       65 


brought  about  by  the  Black  Death  in  1349-50,  we 
are  enabled  to  get  a  typical  illustration  of  the  system 
in  the  Winslow  Manor  Rolls.*  The  land  is  seen  to 
consist  of  lord's  demesne  and  land  in  villeinage. 
The  villain's  holding  consists  of  acre  and  half  acre 
strips  scattered  throughout  the  three  fields.^  The 
bundle  of  strips  so  held  (normally  about  thirty 
acres)  is  a  virgate  or  yardland.  The  great  body 
of  tenants  is  made  up  of  these  holders  of  virgates, 
half  virgates,  and  acres,  and  are  in  serfdom.  Going 
back  to  the  Hundred  Rolls  (Edward  I,  1279)^  we 
learn  of  the  classes  of  tenants,  the  libere  tenentes, 
the  villani,  or  virgate  holders  and  half  virgate  hold- 
ers, and  the  cottier  tenants,  and  the  services  and 
payments  of  each.*  The  chief  services  rendered  to 
the  lord  of  the  manor  were,  ist,  week-work,  con- 
sisting of  two  or  three  days  a  week  on  the  demesne 
throughout  the  year;  2d,  the  precariae  or  boon-days, 
extra  work  at  busy  seasons,  e.g.  ploughing  times 
and  harvest ;  3d,  payments  in  money  and  in  kind. 
In  addition  to  this  there  were  yet  more  servile  inci- 
dents, such  as,  the  payment  of  a  fine  for  the  mar- 
riage of  a  daughter,  or  the  sale  of  an  ox,  and  the 
obligation  not  to  leave  the  lord's  land,   ett.     The 


\-  I 


1  Eng.  Village  Com.,  p.  22. 

2  Ibid.  p.  28. 


*  Ibid.  p.  34. 

*  Ibid.  p.  41. 


66      Th^  Mark  in  Europe  and  America. 

whole  body  of  tenants  was  under  the  direction  of 
manorial  officers. 

The  entire  chain  of  evidence  wrought  out  with 
great  patience  and  detail  carries  us  back  to  Domes- 
day, and  shows  us  essentially  the  same  thing  in 
operation  throughout  England  —  manorial  lords, 
freemen,!  villains,  cottagers,  and  slaves,  all  forming 
parts  of  the  same  system.  It  is  this  vivid  picture 
of  all  England  under  one  vast  system  of  villain 
tenure,  with  its  oppressive  servile  labors,  payments 
and  exactions,  which  forms  Mr.  Seebohm's  most 
striking  contribution.  It  is  this  which  renders  all 
dispute  about  words,  as  whether  the  villain  was  a 
serf  or  a  freeman,  of  little  value.  If  a  man  is  com- 
pelled to  render  to  another  a  fixed  service  of  consid- 
erably over  a  hundred  days  in  the  year ;  if  in  addi- 
tion to  this  he  must  work  twenty  or  thirty  days 
more  at  the  will  of  the  other,  in  all,  perhaps,  half 
the  working  days  ;  if  in  addition  to  this  he  must 
make  payments  of  produce  or  money  to  that  other; 
if  in  addition  to  this  he  is  bound  to  the  soil;  if  he 
cannot  marry  his  daughter  without  this  superior's 
consent,  nor  sell  his  ox,  nor  grind  his  grain  else- 
where than  at  the  mill  of  this  superior;  if  he  have 

^  The   terms   liberi,  libere   tenentes  and  freemen  are  used 
interchangeably. 


Discussion  of  the  Later  Evidence.        67 


no  status,  or  an  uncertain  one,  in  any  except  the 
lord's  court;  if  the  lands  he  cultivates  go  into  his 
superior's  hands  at  his  death,  and  when  regranted, 
must  be  regranted  without  division  and  on  the  pay- 
ment of  a  fine;  then  it  little  matters  whether  he  is 
called  a  serf  or  a  freeman,  so  long  as  you  know  the 
state  of  the  facts.  And  that  this  can  be  taken  as 
the  typical  condition  of  the  villain  of  post-Domes- 
day times  can  hardly  be  doubted. 

The  Domesday  book  itself  (1086)  presents  to  us 
the  same  picture.     There  is  the  same  division  of 
the  land  into  lord's  demesne  and  land  in  villainage, 
the   same   kinds   of   holdings,    the   same  classes  of 
tenants.     According  to  Ellis's  estimate  as  to  popu- 
lation, 70  per  cent,  were   made   up  of  villani,  and 
the  still  more  dependent  class  of  bordarii  and  cotarii. 
The  former  have  usually  single  virgates  and  half  vir- 
gates;  the  latter  a  few  acres,  or  merely  a  cottage. 
They  hold  in  villeinage  one-half  the  cultivated  lands 
of  England.!    One-eighth  of  the  population,  holding 
perhaps  one-fifth  of  the  land,  apparently  under  the 
same  tenure  as  the  villain,    are   classed   as   libere 
tenentes  and  sochmanni.     The  lords  of  the  manor 
and  the  servi  or  slaves,  each  formed  less  than  one- 

^  Eng.  Village  Com.,  p.  90. 


Ill 
I 


r 


68      The  Mark  in  Europe  and  America. 

tenth  of  the  population.^  So,  taking  the  England 
of  Domesday,  —  and  Domesday  was  said  to  include 
every  yard  of  land  in  it,2_we  have  at  that  time  a 
population  and  an  agricultural  system  in  which  the 
great  mass  of  the  people  is  in  social  and  economic 
dependence  and  subject  to  exactions  of  a  servile 
character.  But  the  criticism  has  been  made  that 
too  much  stress  has  been  placed  upon  the  ter7ns 
used  in  Domesday.  It  may  be  said,  with  some 
show  of  reason,  that  Domesday  is  first  and  foremost 
an  enrollment  of  lands  for  purposes  of  taxation ;  that 
it  is  not  a  description  of  classes ;   that  the  mention 

1  Ellis  gives  the  following  estimate  : 

5  Liberi  Homines 10007 

(  Sochmanni ^r  072 

Villani ,og'^o7 

5^^^^^^" 82,119 

^^^t^"i 5,054 

Servi 2^  ,^6 

Burgenses ^^^^g 

All  others  (most  of  whom  might  fall  in  the 

above  classes) 21  360 

283,242 
See  Ellis's  Introduction  to  Domesday  Book,  Vol.  II,  p.  511, 
et  seq. 

^  "  Tarn  diligenter  lustrari  terram  permisit,  ut  ne  unica  esset 
hyda,  aut  virgata  terrae,  ne  quidem  (quod  dictu  turpe,  verum  is 
factu  turpe  non  existimavit),  bos,  aut  vacca,  aut  porcus  praeter 
mittebatur,  quod  non  is  retulerat  in  censum."  —  The  Anglo- 
Saxon  Chronicle,  as  quoted  in  Ellis's  Introd.  to  Domesday 
Book,  Vol.  I,  p.  15. 


Discussion  of  the  Later  Evidence.        69 

of  the  latter  is  purely  incidental  to  the  ascertaining 
of  the  former,  much  less  is  it  a  description  of  the 
services  of  these  classes ;  that  the  barones  regis y  who 
made  the  survey,  knew  little  and  cared  less  about 
the  status  of  the  tenants,  and  hence,  that  any  infer- 
ence as  to  their  freedom  or  serfdom,  must  be  taken 
with  large  allowance.  Yet  after  all,  this  great  his- 
torical monument,  founded  upon  the  sworn  testi- 
mony of  the  cultivators  in  each  neighborhood,  must 
present  the  rough  outline  of  the  agricultural  system 
as  it  existed,  and  it  is  the  broad  facts  and  not  the 
isolated  cases  that  we  are  seeking. 

Domesday  is  practically  a  description  of  the  con- 
ditions under  Edward  the  Confessor  and  at  the  close 
of  the  Saxon  rule.^  The  same  manors  were  crown 
manors  before  and  after  the  conquest ;  the  monas- 
teries for  the  most  part  continued  to  hold  their 
manors,  and  the  Norman  knights  came  into  pos- 
session of  those  of  the  Saxon  thanes.^      Whatever 


I 


1  Eng.  Village  Com.,  pp.  82,  83. 

2  It  would  be  a  mistake  to  think  of  a  manor  only  as  a  great 
estate.  Many  of  them  were  very  small.  E.g.  the  Manor  Fallei 
given  in  the  Domesday  for  Devonshire.  One  Drogo  holds  it 
of  the  Bishop.  Drogo  has  half  a  ferling  and  one  plough  (land) 
in  demesne.  There  Drogo  has  one  villain,  two  borders,  and 
one  serf,  three  head  of  cattle,  five  swine,  six  sheep,  and  ten 
goats,  four  acres  of  wood  and  six  acres  of  meadow. 


'■» 


f  ;■ 

! 


Ilii 


!t! 


i 


1^ 


70      The  Mark  in  Europe  and  America. 

may  have  been  the  system  at  the  beginning  of  the 
Saxon   rule,   at  its   end,    a   system   in  all  respects 
identical   with  the  manorial   held   universal    sway.^ 
There   was  the  same  open-field  system,  the  same 
division    into   lord's    land   and    land    in    villainage 
(thane's    ifila^id  and  geneat  land),  the  same  hold- 
ings    of   bundles    of   intermixed    strips,    the    same 
classes  of  tenants,  the   same  kinds  of  labor  dues, 
payments,  and  servile  exactions  under  the  Saxons 
before  the  Conquest,  as  under  the  Normans  after 
the  Conquest.      The  evidence  of  the  same  system  in 
detail  is  carried  back  to  the   loth  century  by  the 
Rectitudines  Singularum    Personarum.^      Here  we 
have  the  conditions  precisely  like  those  of  the  nth 
century,  as  to  the  cultivation  of  the  estates  by  tenants 
in  economic  and  social  servitude,  and  this  document 
is  supported  by  other  contemporary  evidence. 

Thus  far,  it  is  generally  admitted,  Mr.  Seebohm 
has  made  out  his  case,  though  it  is  not  so  generally 
admitted  that  the  conditions  described  were  by  any 
means  so  universal  as  he  would  contend.  But  this 
was  the  settled  condition  of  things  a  century  before 
the  Conquest.     It  was  not  a  sudden  invention.     No 

1  Eng.  Village  Com.  p.  84. 

*  See  Thorpe's  Ancient  Laws  of  England,  p.  185. 


j^a 


Discussion  of  the  Later  Evidence.        71 


agricultural  system  can  be.  How  far  it  ran  back, 
whether  the  Saxons  had  been  led  to  revolutionize 
their  system  since  their  occupation  of  the  country,  is 
of  course  hard  to  determine.  But  the  scanty  earlier 
evidence  at  our  disposal  furnishes  hints  of  the  same 
system,  and  certainly  does  not  furnish  proof  of  any 
other.  The  evidence  of  the  charters  as  to  owner- 
ship of  land  runs  back  as  far  as  the  Saxon  docu- 
ments go,  and  the  evidences  of  inequalities  of  wealth, 
rank  and  power,  have  already  been  cited.  The  Laws 
of  Ine  (a.d.  688)  bear  testimony  to  yard-lands  (vir- 
gates),  labor  dues,  and  payments.  It  further  gives  a 
hint,  not  only  of  the  condition  of  the  slaves,  but  also 
of  some  who  were  called  "  freemen.*'  ^  **  If  a  theow 
work  on  Sunday  by  his  lord's  command  he  shall  be 
free.'*  "  If  a  theow  work  on  Sunday  without  his 
lord's  knowledge  let  him  suffer  in  his  hide."  **  If  a 
freeman  work  on  Sunday  without  his  lord's  com- 
mand let  him  forfeit  his  freedom."  ^  This  is  within 
two  centuries  of  the  Saxon  invasion.  Going  back 
to  the   laws  of   Ethelbert  in   the   6th  century,  we 

^  Prof.  Ashley  compares  the  position  of  the  dependent 
freemen  to  that  of  the  Roman  colonus,  Intro,  to  Origin  of 
Property  in  Land,  p.  XL. 

2  Thorpe,  Ancient  Laws  of  England,  I,  p.  105. 

Note  the  similarity  of  the  terms  used  in  speaking  of  the 
theow  and  i!^^  freeman. 


h\ 


, 


72      T/ie  Mark  in  Europe  and  America. 

undoubtedly  find  there  a  hint  of  the  manor,  and 
certainly  evidence  of  private  estates.^  Now  when 
this  line  of  evidence  is  not  left  loose  but  is  joined 
with  that  from  the  earliest  period  downward  with 
which  it  harmonizes;  when  it  is  viewed  in  the 
broad  light  of  the  known  facts  in  regard  to  the 
social  structure,  it  forms  a  chain  which  is  not  easily 
broken.  It  has  been  said  that  there  is  a  gap  here, 
that  the  evidence  is  weak.  It  is  not  weak  on  its 
positive  side.  It  establishes  beyond  question  the 
existence  of  individual  landed  property  from  the 
4th  or  5  th  century  to  the  present,  with  a  strong 
probability,  to  say  the  least,  of  its  existence  in 
the  Germany  of  Tacitus.^  It  establishes  beyond 
question  from  Tacitus  forward  an  aristocratic  social 
organization  with  its  gradations  of  rank,  wealth  and 
power,  a  condition  of  things  which  was  intensified 
by  the  warlike  character  of  the  age.  It  establishes 
beyond  question  the  existence  of  a  servile  popula- 

}  Eng.  Village  Com.  p.  173. 

2  It  has  been  well  remarked  by  Professor  Birkbeck,  "We 
find  serfdom  existing  in  England  soon  after  the  Norman  Con- 
quest  under  the  name  of  villeinage ;  we  find  serfs  in  Saxon 
times  under  the  designation  of  geneats  and  geburs ;  we  find 
serfdom  forming  part  of  the  German  agricultural  system  in 
the  days  of  Tacitus.      Is  there  not  a  strong  probability  that 

the  first  mentioned  custom  was  derived  from   the   last.^" 

Distribution  of  Land  in  England,  ch.  III. 


\ 


Discussion  of  the  Later  Evidence.        73 

tion  from  the  time  of  Tacitus,  until  through  economic 
and  social  progress  it  finally  disappeared.  The 
evidence  is  weak  in  not  being  able  to  prove  a  nega- 
tive, that  is,  that  free  communal  village  groups 
did  not  also  exist.  But  it  is  well  to  note  the  entire 
absence  of  any  proof  of  communal  ownership  in 
Tacitus,  and  a  similar  absence  of  anything  which 
,  may  not  be  explained  equally  well  as  the  communal 
enjoyment  of  privileges  under  a  lord.  It  is  not 
sufficient  to  establish  the  existence  of  a  hitherto 
unsuspected  institution  to  give  such  an  interpreta- 
tion to  terms,  of  which  we  have  not  as  yet  adequate 
knowledge,  as  shall  account  for  the  institution  of 
the  theory.  We  talk  about  serfdom  and  freedom 
as  though  these  very  terms  were  used  during  the 
Saxon  period  in  the  modern  sense,  and  that  even 
though  we  are  not  yet  agreed  as  to  what  the  terms 
now  mean.  We  say  of  a  6th  century  man  or  a 
nth  century  man  that  he  was  free.  Free  from 
what?  Free  to  do  what*.'^  The  freedom  which  was 
** the  privilege  of  a  class''  was  very  different  from 
the  19th  century  conception  of  freedom.  One 
understands  by  serf  a  slave  like  the  Roman  slave, 
or  the  slave  on  one  of  our  ante  belhim  plantations; 
used  in  such  a  sense  the  serf  population  of  England 
was  small.     Another  understands  by  serf  a  depen- 


fl 


Il» 


74      The  Mark  in  Europe  and  Arnerica. 

dent  standing  in  a  position  between  that  of  an 
American  slave  and  that  of  the  man  who  can  go 
where  he  will,  when  he  will,  enter  freely  into  con- 
tracts and  be  free  from  servile  exactions.  The 
dependence  of  a  very  large  portion  of  the  population 
is  indisputable. 


But  if  the  considerations  to  which  the  study  of  • 
the  later  evidence  has  given  rise  were  left  here,  its 
most  important  element  would  be  omitted.  For  we 
have  already  called  attention  to  the  fact  that  the 
method  of  following  back  to  the  unknown  from  the 
known  is  chiefly  valuable  in  enabling  us  to  discover 
the  direction  of  historical  development.  The  broad 
facts  are  what  we  chiefly  want.  It  would  be  per- 
fectly legitimate  to  ask,  what  upon  the  whole  has 
been  the  tendency  of  the  development  in  the  labor- 
ing population  of  England  from  the  Rectittcdines^ 
Singtdarum  Personariim  to  the  Reform  Laws.  Not 
the  isolated  case,  but  the  general  condition  is  what 
we  want.  Now,  it  is  perfectly  conceivable  that  there 
may  have  been  a  back-and-forward,  pendulum-like 
movement  during  brief  periods,  so  far  as  political 
conditions  are  concerned,  but  such  could  not  be  the 
case  in  respect  to  the  agrarian  system,  except  for 
long  periods.     The  question  as  to  the  direction  of 


Discussion  of  the  Later  Evidence.        75 

economic  and  political  development  for  the  past 
five  or  six  centuries  may  be  dismissed,  for  all  will 
instantly  admit  that  there  has  been  a  very  slow  but 
very  steady  progress  toward  greater  freedom.  But 
how  was  it  from  Domesday  onward,  or,  if  you  please, 
from  the  Rectitudines  ?  Now,  the  series  of  documents 
from  Domesday  downward  show  a  very  rapid  increase 
in  the  number  of  libere  tenentes^  and  sochrnanniy 
and  the  decrease  and  disappearance  of  the  servi. 

Professor  W.  J.  Ashley,  who  takes  substantially 
the  view  that  the  evolution  of  Teutonic  society 
has  been  in  the  main  from  a  condition  of  serfdom 
toward  greater  freedom,  has  made  an  important 
contribution  to  the  whole  subject  of  the  direction 
of  this  evolution  from  the  1 1  th  century  forward  by 
the  emphasis  which  he  has  placed  upon  the  increas- 
ing numbers  of  the  higher  classes  of  tenants,  the 
growing  importance  of  'commutation,'  the  increas- 
ing disposition  of  manorial  lords  to  let  certain  privi- 
leges, or  their  entire  estates  at  an  annual  'firm' 
or  rental  to  some  individual,  and  occasionally  to 
the  entire   manorial  community.^      In    the   chapter 

^  An  excellent  illustration  is  given  in  Ashley's  Economic 
History,  p.  23. 

2  Examples  of  the  latter  in  the  Worcestershire  Register, 
47  a  vid  54  b,  have  been  cited  by  Nasse  in  Land  Communities 
and  Ashley  in  Economic  History. 


11 


\„ 


76      The  Mark  in  Europe  and  America. 

on  The  Manor  and  Village  Community ^  in  the  first 
volume  of  his  Economic  History,  and  in  the  Intro- 
duction to  The  Origin  of  Property  in  Landy  and 
elsewhere  this  tendency  and  its  effects  have  been 
pointed  out. 

From  labor  services  at  the  lord's  will  there  was  in 
the  twelfth  century  rapid  progress  to  labor  services 
of  fixed  amount,  and  from  this  a  still  more  rapid 
progress  to  the  commutation  of  these  for  fixed 
money  rents.^  Professor  Allen  indeed  was  not 
ready  to  grant  that  from  the  loth  to  the  ijrth 
century  serfdom  grew  from  harsher  to  less  harsh.^ 
In  fact  he  thinks  that  the  opposite  was  the  case. 
He  would  put  a  different  interpretation  upon  the 
requirement  of  labor  services  "at  the  lord's  will," 
than  that  the  obligation  was  one  of  unlimited 
liability  to  labor.  He  supposes  that  the  time  and 
manner  of  these  services  were  fixed  largely  by 
custom,  that  they  were  merely  nominal,  and  that 
in  fact  they  were  much  less  severe  than  the  fixed 
week-work  of  two  or  three  days  a  week  which  pre- 
vailed in  the  nth  and  I2th  centuries.  But  it  will 
be  remembered  that  the  Rectiticdines  mention  labor 

^  "  He  (the   villain)  obtained  by  custom  fixity  of  rent  and 

fixity  of  tenure." — Birkbeck,  Distribution  of  Land  in  Eng- 
land, ch.  ii.  • 

2  Monographs,  p.  244. 


:  Discussion  of  the  Later ^  Evidence.        77 

for  two  or  three  days  every  week.  The  supposi- 
tion that  the  requirement  of  labor-service  at  the 
lord's  will  was  merely*  nominal,  and  was  with  ''the 
understanding  that  no  unreasonable  demands  should 
be  imposed  on  them"  is  gratuitous.  The  example 
that  Mr.  Allen  cites  ^  from  the  Rotuli  Hundredorum 
of  tenants  complaining  that  their  services  had  been 
increased  is  an  instance  of  boon-days,  and  not  of 
week-work.  No  doubt  there  were  such  cases,  and 
the  one  cited  merely  shows  that  in  the  time  of 
Edward  I.  the  tenants  had  gotten  to  the  point  where 
they  would  resist  an  unusual  demand  for  extra  ser- 
vices. But  it  is  not  so  much  that  the  evidence  shows 
a  decreasing  number  of  days  of  service  in  the  course 
of  the  year,  nor  even  the  more  important  matter  that 
there  was  a  precisely  fixed  amount  of  service  upon 
which  they  could  depend;  but  it  is  the  rapid  rise  of 
tenants  to  a  higher  class,  as  indicated  by  the  decrease 
of  the  lower  and  the  increase  of  the  higher  classes, 
and  the  rapid  commutation  of  services  for  money 
dues,  that  proves  the  growing  emancipation  from 
economical  servitude.^     The  longer  the  period  con- 

^  Monographs,  p.  245. 

2  Vinogradoff  thinks  that  the  influence  of  the  Norman  Con- 
quest, in  bringing  about  certainty  of  condition  as  to  tenure 
and  status  of  the  villains  in  ancient  demesne,  was  of  the  highest 
importance  in  maintaining  their  privileges  and  promoting  their 
liberties.  —  Villainage  in  England,  pp.  1 24,  1 26. 


78      The  Mark  m  Europe  and  America. 

sidered,  the  more  apparent  is  this  trend.  It  has  been 
pointed  out  that  during  the  I2th  and  13th  centuries 
may  be  obser\xd  the  process  by  which  the  communal 
organizations,  not  under  a  manorial  lordship,  of  which 
there  seem  to  be  some  examples,  came  into  exist- 
ence.^ The  growing  tendency  to  commute  services 
for  money  payments  was  accompanied  by  another  by 
which  the  entire  income  of  the  manor,  its  services, 
fines,  court  dues,  meadows,  manorial  mills,  etc.,  etc., 
were  let  to  an  individual  at  an  annual  ''firm"  or 
rental,  and  the  "firmar''  was  sometimes  the  entire 
manorial  village,  the  villata.  The  communal  organ- 
ization, which  was  essential  to  the  manorial  system, 
made  such  action  of  the  village  as  a  unity  possible. 
Mere  communal  action  is  as  good  proof  of  a  servile 
as  of  a  free  community.  If  there  are  some  cases  in 
which  a  serf  community,  through  operations  which 
were  well  known,  came  to  control  its  own  affairs, 
does  it  not  create  a  presumption  that  others  where 
the  process  is  not  so  obvious  may  have  become  so 
by  the  same  means }  The  tendency  of  temporary 
agreements  and  privileges,  which  were  no  doubt  at 

^Ashley,  Economic  History,  pp.  37,  64.  There  are  in- 
deed cases  in  Domesday  where  the  tenants  hold  the  manor 
apparently  as  a  body.  But  it  is  always  under  a  lord.  "  Ipse 
episcopus  tenet  Melbroc.  .  .  .  Villi  tenuerunt  et  tenent 
Non  est  ibi  aula."  — I.  41  b.     See  also  Alvarestoch. 


Discussion  of  tJu  Later  Evidence.       79 

first  advantageous  to  both  lord  and  tenants,  to 
harden  into  custom,  and  of  custom  to  harden  into 
right  and  law,  strongly  contributed  to  this  growth 
toward  greater  economic  and  social  freedom. 

It   has  been  urged  that  the  loss  of  ownership  and 
its  exchange  for  mere  rights  of  use  of   woods  and 
pasture  which  tenants  enjoyed  in  the  Middle  Ages, 
were  due  solely  to  the  encroachments  of   the  lords. 
But  these  privileges  must  have  existed  and  hardened 
into  rights  on  estates  where  there  were  dependent 
cultivators,  and  that  there  were  such  estates  is  indis- 
putable.    The  suggestion   of   what  was  virtually  a 
great  conspiracy  over  a  considerable  period  of  time, 
viz.,  "  that  the  lords,  and  lawyers  acting  in  the  inter- 
ests of  the  lords,  got  the  people  to  believe  that  the 
lord's  will  was  the  origin  of  those  ancient  customary 
rights  which  were  before  absolute,"^  can  hardly  be 
saved  from  being  characterized  as  an  utterly  artificial 
interpretation  of  historical  development  even  by  the 
eminence  of  the  names  that  have  given  it  counte- 
nance.    That  a  body  of  lawyers,  at  any  period  in  the 
world's  history,  deliberately  set  to  work  to  enslave  a 
great  people,  and  succeeded  in   *' getting  them  to 
believe"  that  they  had  always  been  in  that  slavery, 
is  hard  to  believe. 

1  Pollock,  The  Land  Laws,  p.  48. 


!i 


.    I: 


80      The  Mark  in  Europe  and  America. 

The  equality  in  the  size  of  the  strips  of  land,  and 
in  the  bundles  of  strips  forming  a  single  holding, 
and  in  the  condition  of  the  tenants,   has  been  re- 
garded as  of  fundamental  importance  in  the  mark 
theory,  since  it  was  held  to  be  proof  of  the  eqical- 
ity  of  the  freemen  of  which  the  village  community 
was  composed.     Mr.  Seebohm  maintains  that  this 
equality  is  an  evidence  of  serfdom,  not  of  freedom. 
Whether  he  is  right  in  this  or  not,  it  is  worth  while 
to  notice  that  in  the  periods  where  our  evidence  is 
abundant,  the  tenants  amongst  whom  the  "equality 
of   holdings    and    condition   is    greatest    are   those 
who  are  subject  to  the  most  servile  exactions.     A 
typical  illustration  of  this  may  be  seen  in  the  case 
of  the  tenants  of  Castle  Combe.^     The  history  of 
this  manor  is  full  of  instruction  in  more  ways  than 
one.     In  the  manorial  records  for  1340,  there  are 
ten  tenants  classed  under  the  head  of  "liberi,*'  no 
two  of  whom  hold  on  the  same  terms.     They  range 
from  William  le  Knevylle,  who  holds  two  and  a  half 
virgates  and  one  tenement,  and  pays  one  pound  of 
cumin  a  year,  and  is  subject  to  heriot,  to  Henry  le 
Moylner,  who  holds  a  water  mill  and  three  acres, 
and  is  subject  to  money  rent,  labor  dues  which  may 

^  G.  Poullet  Scrope,  History   of   the   Manor   and   Ancient 
Barony  of  Castle  Combe. 


Discussion  of  the  Later  Evidence.        81 

be  commuted  for  money,  and  payments  in  kind.     It 
is  worth  remarking  that  while  in  1 340  there  are  ten 
classed   as   liberi,   there  were  none   in    Domesday. 
Among  the  thirty  customary  tenants  there  is  greater 
equality,    heavier  services   and  exactions.      Of   the 
twelve  who  are  classed  as   virgatae,   the  holdings, 
services,  payments,  and  servile  obligations  are  pre- 
cisely the   same.     So,   also,   are  the  holdings,   ser- 
vices and  exactions  of  the  eleven  dimidiae  virgatae. 
There  are  eight  Monday -men  and  twelve  cotarii  who 
occupy  tenements,  and  in  some  cases  hold  a  few 
acres  of  land.      It    is   well   to   notice   that   of   the 
thirteen  se}vi  recorded  in  Domesday  all  have  dis- 
appeared as  such.     Under  the  name  of    ''nativV 
.    they   appear   among   the   other  classes.     There   is 
good  reason  for  believing  that   it  is  a  mistake  to 
suppose  that  all  these  "servi''  or  "nativi''  became 
Monday-men  or  cotarii,  and  that  there  was  a  sort 
of  sliding  scale  from  class  to  class.     Undoubtedly 
in  many  cases  the  ^'nativi''  became  holders  of  vir- 
gates  and  half  virgates,   perhaps   rising  above  the 
cotarii.     A  good  illustration,  both  of  this  and  of  the 
gradual   rise  from   a  servile  condition  to  a  higher 
class,    may   be   seen   in    the    court   rolls  of  Castle 
Combe,   under  date  of   1367,^  in  which  case  John 

1  History  of  Castle  Combe,  p.  162. 


^ 


I V 


Iil 


82      Tlie  Mark  m  Europe  and  America. 

Pleystede,  ''a  native  of  the  lord,  was  admitted  to 
hold  two  yards  of  land  'in  bondage/  thus  becom- 
ing a  customary  tenant.  Let  us  observe  the  direc- 
tion of  the  development  in  this  manor.  In  Domes- 
day, no  freemen,  twelve  customary  tenants,  five 
cotarii  and  thirteen  slaves.  In  1340,  ten  liberi, 
thirty  customary  tenants,  twenty  Monday-men  and 
cotarii,  and  no  slaves.  The  labor  dues  are  esti- 
mated  at  a  money  value  and  may  no  doubt  be  com- 
muted. The  greater  the  equality  among  the  mem- 
bers  of  a  class,  the  more  servile  the  exactions.  The 
examples,  however,  of  both  of  these  facts  are  numer- 
ous.^  And  the  farther  back  we  go  the  larger  the 
proportion  of  the  population  that  are  subject  to 
equality  of  holding,  services  and  exactions. 

Professor  Allen,  though  he  finally  admitted  that 
a  servile  community  is  an  original  part  of  Saxon  his- 
tory on  English  soil,^  nevertheless  believing  "  that 
the  political  institutions  of  the  Germans  were  essen- 
tially democratic,'' 3  insisted  upon  the  importance  of 
the  free  element  in  Saxon  life  and  in  the  feudal 
manor.     Professor  Earle,*  likewise,   is  disposed  to 

1  Cf.    Mr.    Seebohm's    examples    from    the    Cartularies    of 
Gloucester  and  Westminster.  —  Eng.  Village  Com.  p.  58. 

2  Primitive  Communities,  see  Science,  Vol.  Ill,  p.  786. 

*  Monographs,  p.  216. 

*  Earle,  Land  Charter  and  other  Saxonic  Documents  (1888), 
Introduction. 


Discussion  of  the  Later  Evidence.        83 

magnify  the   free  element    in  earlier  Anglo-Saxon 
society.     He  rejects,   however,  the  "idyllic  sketch 
of  the  government  of  the  coerls,''  ^  which,  as  Elton 
puts  it,   was    "too  eagerly  adopted  by  Kemble.'' ^ 
"At   the   first   moment   of    historical    light,''    says 
Earle,  "we  find  manorial  rights  everywhere.'' ^    He 
would  represent  to  himself,  then,  at  the  beginning 
of  English  history,  the  manor  with  its  servile  popu- 
lation,  and   along  side  of   it  a  free  village  with  a 
somewhat  communistic  agrarian  system.     "  The  con- 
querors found  a  system  of  agriculture  worked  by 
families  of  slaves  in  Roman  villas  ;  they  kept  what 
they  found,  only  putting  an  English  lord  into  the 
place  of  a  Romano-British  dominicus,  and  so  with- 
out   further    change    they   founded    the    'domain' 
or    'viir    of   the  English  manor."  ^     He   suggests 
further  that  a  village  community  existed  along  side 
of  the  manor,  and  that  the  lord  of  the  manor  exer- 
cised a  sort  of  presidential  authority  over  this  agri- 
'  cultural  group  ;^  and  he  thinks  that  the  court  baron 
and  the  customary  court  are  evidence  of  this.     If 
the  recent  suggestions  of  Mr.  Maitland  and  Professor 

1  Land  Charters,  Introd.,  p.  xv. 

2  English  Historical  Review,  1886,  p.  437. 
8  Land  Charters,  Introd.,  p.  xlvi. 

*  Ibid.,  Introd.,  p.  Ix. 
5  Ibid.,  Introd.,  p.  Ixii. 


84      The  Mark  in  Europe  and  America. 

Vinogradoff,  in  regard  to  the  court  baron,  to  which 
we  will  presently  refer,  are  to  be  accepted,  it  would 
^  weaken  the  force  of  Professor  Earle's  supposition. 
In  so  complex  a  study  as  that  of  the  growth  of  a 
constitution  some  elements  are  apt  to  be  overlooked. 
It  is  fortunate  on  this  account  that  Earle  has  insisted 
on  the  importance  of  the  military  influence  in  the 
Saxon  constitution,  to  which  others  ^  have  given  an 
important,    though    hardly   so    prominent    a   place. 
"  Their  (the  Saxons')  banded  forces  were  divided  by 
hundreds,  and  by  hundreds  they  spread  over   the 
face  of  the  land,  and  .  .  .  shaped  the  first  draft  of 
the  political  map,  such  as  in  its  most  elementary 
ground-work    it    continues    to    this   day.      At    this 
moment  the  hundreds  on  our  map  represent  the  first 
permanent  encampments  of  the  invading  host. 
The  military  leader  is  the  ancestor  of  the  lord  of  the 
manor."  2     The  military  character  of  the  settlement 
and  the  military  character  of  their  life  in  succeeding 
generations  should  no  doubt  be  kept  in  mind.     As 
one  studies  the  agrarian  system,  as  presented  by 
Mr.  Seebohm,  he  is  apt,  unconsciously,  to  picture  an 
era  of  unruffled  peace,  such  as  the  England  of  the 

1  E.g.  Green,  The  Making  of  England,  p.  169,  says,  "The 
land  occupied  by  the  hundred  warriors  who  formed  the  unit  of 
military  organization  became,  perhaps,  the  local  hundred." 

2  Land  Charters,  Iv. 


Discussion  of  the  Later  Evidence.       85 

middle  ages  did  not  present.     Much  as  his  work  has 
done  to  correct  the  imperfect  notions  of  mediaeval 
English  life,  which  one  is  apt  to  get  from  poets  and 
romancers,  yet  it  is  not  to  be  forgotten  that  per- 
petual warfare  must  have  exercised  a  powerful  influ- 
ence on  the  character  of  the  social  life  and  the  insti- 
tutions of  the  Saxons.     It  is  worth   remembering 
that  the  tendency  of  military  organization  is  strongly 
toward  a  system  of  authority  and  subjection.     Self- 
preservation  in  a  rude  society  requires  military  power 
and  this  demands  the   elevation  of  some  and  the 
submission  of  others.      And  it  has  been  very  well 
observed  that,  in  early  Teutonic  society,  it  was  not 
an  election  by  the  whole  body  of  citizens  which 
elevated  a  man  to  the  position  of  chief,   but   the 
getting  about  him  of  a  body  of  personal  followers 
who  devoted  themselves  voluntarily  to  the  service 
of  the  chief.i      The   organization  growing   out   of 
this  military  element  leaves  little  room  for  a  demo- 
cratic social  structure. 

The  distinction  between  the  manorial  system  and 
the  feudal  system,  which  Earle  makes,  is  worthy 
of  careful  attention.  "  The  manor  is  far  older  than 
the    feudal   system,   and    has   outlived   it,"^     The 

1  Ross,  Primitive  Democracy  in  the  Alps,  p.  4. 
*  Earle,  Land  Charters,  Iviii. 


86      The  Mark  in  Europe  and  America. 


distinction  would  seem  to  be  just.  The  manorial  is 
essentially  an  agricultural  system,  while  the  feudal 
is  esseutially  a  military  and  governmental  system, 
based  upon  land  holding.  ^  The  system  of  the  culti- 
vation of  the  soil  by  a  group  of  dependent  cultiva- 
tors,2  which  Tacitus  has  described  is  so  like  that 
which  we  find  as  the  basis  of  English  agriculture 
long  after,  that  it  would  seem  fair  to  infer  that  it 
had  had  an  uninterrupted  existence  and  develop- 
ment.3  And  yet,  while  it  is  well  to  keep  in  mind 
these  two  aspects  of  the  social  structure  during 
the  middle  age,  it  must  not  be  forgotten  that  for 
a  time,  at  least,  they  form  an  undivided  whole. 


As  the  importance  of  the  military  influence  in  the 
formation  of  the  Saxon  constitution  is  not  to  be 
overlooked,  so  the  legal  evidence  is  a  source  from 
which  much  knowledge  is  to  be  expected.  The  diffi- 
culties  of  the  interpretation  of  this  kind  of  evidence 
are  very  great,  not  the  least  of  which  arises  from  the 

1  Cf.  Freeman,  Norman  Conquest,  i,  p.  92. 

^  Germania,  §  25. 

»Prof.  Birkbeck  remarks  in  this  connection:  "I  am  not 
aware  of  any  reason  for  supposing  that  the  condition  of  the 
peasant  class,  the  actual  tillers  of  the  soil,  was  affected  in  any 
sensible  degree  by  the  introduction  of  feudalism." Distribu- 
tion of  Land  in  England,  ch.  ix. 


Discussion  of  the  Later  Evidence.        87 

<*  legal  fictions,'*   the  character  of  which  has  been 
so  admirably  explained  by   Sir  Henry  Maine.^'    The 
logical  artificiality,  the  uniformity  of  conditions  pre- 
supposed, the  sharp  lines  of  legal  definition,  render 
it  difficult  at  any  time  to  understand  the  complex 
society  over  which  this  legal  system  is  in  operation. 
When  the  legal  writers  of  any  period  are  no  more 
in  accord  in  their  interpretation  of  law,  than,  say 
Glanville  and  Bracton,  a  still  further  complication 
arises.     All  these  difficulties  are  greatly  increased 
when  the  attempt  is  made  to  interpret  conditions  of 
the  remote  past,  which  appear  to  be  revealed  by 
present    administration   of   law.^      It    is   well   nigh 
impossible,  in  attempting  to  follow  a  *^clew,''  not  to 
have  in  mind  the  thing  to  which  the  clew  is  expected 
to  guide.     The  dangers,  as  well  as  the  advantages  of 
the  legal  method,  are  illustrated  in  the  recent  vol- 
ume of  Professor  Vinogradoff,  of  the  University  of 

1  Ancient  Law,  ch.  ii,  p.  20. 

2  Gomme  makes  the  point,  in  Village  Communities,  page  260, 
**  that  the  identification  of  manor  courts  with  the  old  township 
assemblies,  and  hence  with  the  assembly  of  the  primitive  village 
community,  cannot  be  reasonably  denied  ".  But  are  we  sure 
that  we  really  know  very  much  about  the  old  township  assem- 
bly   to  say  nothing  of  the  primitive  village  community  ?    There 

is  a  deal  of  talk  about  the  'folk-moot'  and  'halimote,'  etc., 
which  is  based  on  rather  shadowy  knowledge  of  these  institu- 
tions. 


88 


The  Mark  in  Europe  and  America. 


Moscow.^  The  two  essays  which  form  the  volume, 
The  Peasantry  of  the  Feudal  Age  and  The  Manor 
and  the  Village  Community^  are  the  results  of  Pro- 
fessor Vinogradoff's  long  and  careful  study  of  docu- 
ments of  the  1 2th,  13th  and  14th  centuries,  and  they 
form  a  distinct  contribution  to  our  knowledge  of 
that  period.  As  has  already  been  intimated,  it  is 
the  legal  evidence  that  interests  him  most,  and  which 
he  has  examined  with  the  greatest  care.  A  remark 
in  the  introduction  gives  the  key  to  his  position. 
''  It  is  a  great,  though  usual  mistake,  to  begin  with 
political  events,  to  proceed  from  thence  to  the  study 
of  institutions,  and  only  quite  at  the  end  to  take 
up  law.  The  true  sequence  is  the  inverse  one."  2 
Accordingly,  whether  dealing  directly  with  the  evi- 
dence, or  stating  conclusions  in  regard  to  the  con- 
dition of  the  population,  it  is  the  legal  aspect  which 
he  presented.  The  villain  may,  according  to  this 
mode  of  interpretation,  have  had  a  legal  status  before 
the  court,  by  reason  of  which  we  might  call  him  a 
freeman,  while  he  yet  remained  in  economic  servi- 
tude.^    Those   alone   are    in    serfdom   who   are   in 

1  Villainage  in  England,  by  Paul  Vinogradoff.    Oxford:  1 892. 

2  Ibid.  p.  12. 

*  One  writer  has  tried  to  express  the  value  of  this  distinc- 
tion by  the  remark  that  "the  Saxon  ceorl  was  not  debarred 
from  rising  out  of  his  position  to  any  office  in  the  state."     A 


Discussion  of  the  Later  Evidence.        89 

servile  slavery.  Keeping  in  mind  the  sense  in 
which  this  author  uses  the  terms  <* freedom'*  and 
"  serfdom,'*  there  is  much  in  the  results,  so  far  as 
the  period  from  which -the  evidence  is  drawn  is 
concerned,  to  confirm  the  position  of  those  who 
have  found,  in  the  centuries  succeeding  the  Con- 
quest, a  steady  approach,  on  the  whole,  toward  greater 
freedom.  "  In  many  cases  we  are  able  to  see  how 
freedom  and  legal  security  emerge  from  subjef- 
tion."^  The  importance  of  the  changes  brought 
about  by  commutation,  and  the  tendency  of  those 
changes  toward  greater  freedom  is  admitted.^  It  is 
very  evident,  also,  that  the  fixity  of  the  customary 
rents  which  were  thus  brought  about,  resulted  finally, 
through  the  rise  in  prices  and  the  decrease  in  the 
value  of  money,  in  practically  transferring  the  owner- 
ship  of  the  villain's  holding  from  the  lord  to  the  vil- 

Fourth  of  July  orator  would  probably  have^<^rg^b^  the  same 
thought  in  the  phrase,  "  The  presidenti^  cjai^ir  is  within  his  *  ^ 
grasp."  /  ^  ''> '  ^ 

1  Villainage  in  England,  p.  1 78.  ^,^         ^  ^,  ^  ^  „,,^ ,  .     _ 

2  "One  of  the  great  movements  of  ^e^.i^h  and  14th  cen-    ^ 
turies  was  toward  the  commutation  of  mOne]jj  services  for  rent."^JrY 
Ibid.  p.  178.     "Commutations  gave  rise  to  actual  agreements,    / 
which  came,  more  or  less,  under  the  notice  of  the  l^w,"  thus/ 
giving  the  villain  a  legal  standing,     p.  i82>-*4Comniutation 
was  a  powerful  agency  in  the  process  of  emancipation."     Ibid. 

p.  188.     "The  wave  begins  to  rise  high  in  favor  of  liberty 
even  in  the  13th  century."     Ibid.  p.  131- 


i: 


"u 


i 


I 


I 


I 


90      The  Mark  in  Europe  and  America. 

lain.  The  effect  of  the  escape  from  labor  services, 
in  establishing  a  legal  freedom  along  with  an 
economical  freedom,  was  much  more  pronounced  in 
the  earlier  period  than  in  the  later.  This  was  due, 
in  part,  to  the  scarcity  of  laborers  after  the  Black 
Death,  which  caused  the  manorial  lords  to  insist 
more  strongly  upon  the  rendering  of  customary 
services  and  servile  exactions,  after  that  event. 
There  is  a  rapid  increase  in  the  number  of  free 
tenants.  The  close  of  the  12th  century  witnesses 
stronger  assertion  of  rights  on  the  part  of  the  ten- 
ants as  a  body,  greater  solidarity  in  matters  which 
concern  themselves,  and  a  disposition  on  the  part  of 
the  lord  of  the  manor  to  lay  responsibility  upon  the 
tenantry  as  a  whole.^  The  growing  freedom  of  the 
13th  and  14th  centuries  is  more  apparent  when  con- 
trasted with  the  legal  disabilities  of  the  nth  and 
1 2th  centuries.  The  latter  present  a  dark  picture 
of  the  status  of  the  great  body  of  villains.  Vinogra- 
doff  thinks  that  under  the  influence  of  Roman  law 
and  the  Roman  legal  conceptions  of  slavery,  together 
with  the  attempt  at  sharp  legal  definition  and  classi- 
fication, a  large  class  of  the  tenantry  are  made  to 
appear  in  a  worse  light  than  they  were  before  the 
Conquest;   that  is,  they  have  lost  their  'technical' 

^  Villainage  in  England,  p.  357. 


I! 


Discussion  of  the  Later  Evidence.        91 

freedom.     There  is  a  considerable  probability  in  this, 
though  there  does  not  seem  to  be.  sufficient  evidence 
to  show  that  such  was  the  case.     But  the  question 
is,  ''  had  they  in  reality  lost  any  practical  freedom ; 
were  they  really  in  a  worse  condition  than  they  were 
before  the  Conquest .?  "     It  is  possible  that  when  a 
description  of  their  position  should  be  cast  into  legal 
phrase,  under  the  influence  of  Roman  law,  their  con- 
dition would  seem  more  servile  than  it  had  seemed 
before.     But  the  tenacity  with  which  they  held  to 
the  customs  and  laws  of  pre-conquest  times  would 
help  them  to  preserve  their  ancient  rights.     At  any 
rate,   the  arguments  by  which  it   is   attempted   to 
show  that  there  was  a  real  loss  of  freedom  are  far 
from  conclusive.     It  is  one  thing  to  assert  that  "  the 
Conquest  had  cast  free  and  unfree  peasantry  together 
into  one  mould   of   villainage,''^   and  another   and 
more  difficult  thing  to  prove  that  it  did  actually  make 
any  change   in   the   rights    and   obligation  of   any 
tenant.     It  is  certainly  an  important  fact  that  ten- 
ants "in  ancient  demesne''  were  protected  by  the 
conqueror  in  the  peculiar  rights  and  privileges  which 
they  had  enjoyed  on  the  royal  domain  before  the 
Conquest,  but   it   is  a  far  different   thing  to  prove 
that  all  Saxon  tenants  enjoyed  the  same  rights  and 

1  Villainage  in  England,  p.  132. 


ill 


92       The  Mark  in  Europe  and  America. 

privileges  as  those  in  the  royal  manors.^  It  is  very 
natural  to  suppose  that  there  were  special  privileges 
on  the  royal  manors  in  Saxon  as  well  as  in  Norman 
times.  The  fact  that  the  proprietor  was  both  lord 
and  king  might  give  the  tenants  a  status  in  the 
royal  courts  which  others  did  not  enjoy.  Mr.  Mait- 
land  gives  an  example  of  the  mingling  of  the  func- 
tions of  two  courts  in  one  and  the  same  court.^  The 
mingling  of  functions  in  such  a  cas-e  is  not  unnatural. 
We  are  told  that  on  the  manors  of  the  king  the  old 
customs  received  careful  protection;  that  on  the 
manors  of  the  more  powerful  barons  it  was  "less 
possible  to  work  out  the  subjection '*  ^  Qf  the  peas- 
antry. Is  it  not  strange,  then,  that  on  the  manors  of 
the  less  powerful  it  was  not  only  possible  to  deprive 
the  tenantry  of  their  ancient  rights  and  privileges, 
but  to  *'get  them  to  believe''  that  such  had  always 
been  their  legal  condition }  One  would  think  that 
if  "conquest  must  work  toward  subjection"  the 
result  would  have  been  the  reverse.  And  stranger 
still  is  this,  in  the  face  of  the  explanations  that  are 
given  of  the  manorial  courts,  in  which  we  are  told 

^  Vinogradoff,  1 23  et  seq. 

2  Pleas  of  the  Crown  for  the  County  of  Gloucester,  Introd. 
p.  24.  In  this  case,  however,  neither  of  the  courts  were  man- 
orial. 

*  Ibid.  p.  132, 


Discussion  of  tJu  Later  Evidence.        93 

that  "  the  weight  of  the  decision  is  with  the  body  of 
suitors,'*  ^  and  in  that  the  body  of  the  court  "  have  all 
the  best  of  it";  and  that  "the  presiding  officer  and 
the  lord  whom  he  represents  have  not  much  to  do 
in  the  deliberations,"  except  the  drawing  up  and 
announcing  the  decision,  "  which  is  materially  depend- 
ent on  the  ruling  of  the  court,"  viz.,  the  body  of  suit- 
ors. It  is  distinctly  asserted  that  "  the  will  of  the 
lord  became  more  distinct  and  overbearing  in  the 
13th  and  14th  centuries."  2  How  was  it  possible, 
then,  to  employ  a  legal  machinery,  which  was  in  the 
hands  of  a  free,  self-governing  community,  to  reduce 
that  community  to  servitude,  —  a  servitude  from 
which  they  began  forthwith  to  recover } 

That  there  was  an  intimate  connection  between 
the  anti  and  post-Domesday  periods  there  can  be 
no  doubt,  but  it  is  somewhat  difficult  to  find  in  the 
latter  period  the  subjection  of  a  body  of  freemen 
to  legal  slavery,  unless  one  approaches  the  subject 
with  the  assurance  that  "the  Conquest  must  have 
worked  toward  servitude,"  and  with  a  lingering  pre- 
conception of  the  character  of  the  freedom  which  must 
have  characterized  the  entire  Saxon  race.    Of  course  it 

1  Pleas  of  the  Crown  for  the  County  of  Gloucester,  Introd. 

p.  370. 

a  Ibid.  p.  80. 


94      The  Mark  in  Europe  and  America. 

may  be  asserted  that  there  may  have  been  **  elements 
of  freedom  bequeathed  by  history  but  ignored  by 
Domesday/'  and  that  rent  may  be,  in  some  cases, 
"an  original  incident  of  tenure,**  and  there  may  be 
cases  given  in  which  the  tenant  became  degraded; 
it  may  even  be,  as  Professor  Vinogradoff  has  wisely 
intimated,  that  the  "  social  evolution  in  this  particu- 
lar curve  is  a  wavy  line,*'  but  the  broad  fact  remains 
that  in  this  particular  curve,  from  Domesday  onward, 
events  made  towards  freedom.  One  of  the  most 
striking  evidences  of  this  will  have  been  established 
if  the  conclusion  at  which  Mr.  Vinogradoff  and 
Mr.  F.  W.  Maitland  arrived  independently,  prove 
true,  viz.,  the  late  evolution  of  the  Court  Baron,  or 
manorial  court  of  the  freemen,  as  distinguished  from 
the  customary  court  of  the  servile  tenants.^  If  to 
the  earlier  manorial  court,  the  halimotCy  there  grew  up 
an  additional  court,  which  was  more  distinctly  the 
court  of  the  freemen,  it  would  be  what  might  be 
naturally  expected  from  the  growth  of  that  element 
of  the  social  organization.^ 

1  Pleas  of  the  Crown  for  the  County  of  Gloucester,  Introd. 
p.  364. 

2  If  this  late  evolution  of  the  Court  Baron  should  be  fully 
established  it  would  destroy  the  inference  of  a  "  duality  of  the 
primitive  settlement"  from  the  '* duality  of  the  manorial  court." 
Cf.  Earle,  Land  Charters,  LXIII. 


Discussion  of  the  Later  Evidence.        95 

Great  stress  is  laid  upon  the  existence  of  "free*' 
tenants  in  the  village  community,  the  attendance  of 
« freemen'*  upon   the  court,  and   the  existence  of 
ancient  freehold  alongside  of  tenements  that  have 
become  freehold,  as  showing  that  "  the  manorial  ele- 
ment is  superimposed  upon  the    communal.'*^     It 
would  help  us  in  understanding  the  difficult  problem 
if  we  could  know  just  how  much  servile  labor,  just 
how  many  servile   exactions,  just  what  disabilities 
might  rest,  in  any  given  period,  upon  one  who  could  be 
called  technically  free:     And  then  if  we  could  add  to 
this  a  knowledge  of  just  what  proportion  of  the  entire 
population  might  bear  this  title,  we  would  be  still 
nearer  the  solution  of  the  problem.     The  escheat  of 
tenant  holdings  to  the  lord ;  the  fact  that  the  villain 
holding  remained  undivided,  and  did  not  admit  of 
partition  by  sale  or  descent;  the  custom  of  "  Borough 
English'*;  and  the  return  to  a  lord  of  a  holding  on 
the  death  of  a  tenant,  and  its  regrant  by  the  lord, 
all  have  been  regarded  as  marks  of  a  servile  condi- 
tion.    But  Vinogradoff  would  not  see  in  the  last, 
evidence  of  ownership  by  the  lord,  but  would  look 
upon  its  return  and  regrant  as  merely  a  public  offi- 
cial act,  to  show  that  the  "true  owner  re-entered 
into  the  exercise  of   his   rights."  2     He   illustrates 

1  Cf.  Eaile,  Land  Charters,  LXIIL,  p.  408.       ^  Ibid.  p.  371- 


? 


96      The  Mark  in  Europe  and  America. 

the  point  by  the  Salic  law,  which  provides  that  when 

a  man  wants  to  transfer  his  property  to  another 

mark  the  evidence  of  the  existence  of  individual  prop- 
erty in  land  in  the  Salic  law  — he  calls  a  third  party 
and  puts  into  his  hand  a  rod  to  signify  that  he  gives 
up  all  claim  to  his  property,  and  this  third  man,  after 
certain    acts  symbolical    of   the  ownership   he   has 
acquired,  gives  the  rod  to  the  second  man,  the  real 
grantee,  who  is  thus  publicly  clothed  with  proprie- 
torship.    So,  says  Vinogradoff,  the  lord  or  his  stew- 
ard is  just  this  third  man,  who*  has  come  to  be  the 
one  who  officially  represents  the  survival  of  the  prac- 
tice.    But  the  illustration  proves  too  much.     If  the 
lord  of  the  manor  has  encroached  upon  the  village 
community  and  monopolized  its  rights,  then  it  was 
the  absolute  return  of  the  lord's  property  into  his 
hands  on  the  death  of  his  serf;  if  it  was  merely  an 
official  act  of  the  leading  citizen  to  give  public  sane- 
tion  to  the  act  of  two  citizens,  private,  and  not  com- 
munal ownership,  had  been  the  original  regime,  of 
which  this  is  a  survival. 

Yet  it  is  when  Vinogradoff  goes  farthest  away 
from  the  evidence,  which  he  has  worked  over  with 
such  care,  and  nearest  to  the  original  arguments  for 
the  ^^mark"  theory,  that  his  conclusions  in  regard 
to  an  original  free  village  community  are  announced 


Discussion  of  the  Later  Evidence.        97 

with  greatest  confidence.  After  all,  it  is  ''  the  open- 
field  system"  ^  which  is  "in  glaring  contrast  with  the 
present  state  of  rights  in  western  Europe,"  which  is 
the  basis  of  the  conclusion  that  the  mark  must  have 
existed.2  "  It  is  evidently  communal  in  its  essence." 
"Rights  of  common  usage,  communal  apportion- 
ment of  shares  in  the  arable,  communal  arrange- 
ments of  ways  and  times  of  cultivation  —  these  are 
the  chief  features  of  open-field  husbandry,  and  all 
point  to  one  source,  the  village  community."  Yet 
it  is  very  evident  that  this  does  not  touch  the  main 
question,  "  Was  it  a  dependent  or  a  self-governing 
community  ? "  Was  individual  ownership  of  land  or 
communism  the  basis?  "But  there  is  absolutely 
nothing  in  the  manorial  arrangement  to  occasion 
this  curious  system,"  ^  by  which  it  is  evidently 
meant  that  it  was  not  necessary  that  tenants  on  an 
estate  should  be  assigned  intermixed  strips,  and  that 

1  It  is  the  "open  field"  all  through  the  discussion  which 
forms  the  "  backbone  "  of  the  theory,  though  it  furnishes  no 
proof  of  the  economic  relations  of  the  holders  in  it.  Elton 
remarks,  *'  Our  common-field  system  points  to  a  time  when  all 
the  arable  land  was  held  in  undivided  shares,  or  was  divided 
periodically  by  lot."  Origins  of  English  History,  p.  405. 
This  seems  to  suggest  an  inference  as  to  the  economic  and 
political  condition  of  the  holders  which  is  hardly  justifiable. 

*  Ibid.  p.  399. 

*  Villainage  in  England,  p.  399. 


98       The  Mark  in  Europe  and  America. 

these  should  be  arranged  in  classes  of  holdings  of 
equal    size.      "It    is    not    a   manorial   arrangement, 
though  it  may  be  adapted  to  the  manor."     Yet  the 
same  may  be  said  of  the  community  of  equal  free- 
men.    There  is   "absolutely  nothing   to  occasion" 
a  body  of  equal  freemen  adopting  such  an  awkward 
system.     One  might  expect  all  the  holdings  to  be  of 
the  same  size,  or  at  least  capable  of  producing  the 
same  amount,  and  surely  there  would  be  no  advan- 
tage to  freemen  over  serfs  in  having  intermingled 
strips.     As  is  said,  "  the  intermixed  strips  and  indi- 
vidual bundles  of  equal  size  find  their  explanation  in 
agricultural  necessity,"  and  that  necessity  is  at  least 
as  likely  to  arise  in  a  group  of  dependent  as  in  a 
group  of   self-governed  cultivators.     But   after   all, 
these  conclusions  from  open-field  cultivation  are  not 
closely  connected  with  the  great  body  of  Vinogra- 
doff*s  investigations,  which,  upon  the  whole,  must 
form  an  important  element  in  the  reconstruction  of 
the  history  of  that  period  in  which  the  picturesque 
"mark"   has   found    so   important    a  place.     It   is, 
indeed,  a  little  strange  that  he  should  have  left  the 
mass  of  documentary  evidence,  which  he  has  col-  . 
lected  with   so   much  care,  to   come  down  to  the 
"open    field"  for   the   basis    of   his  most   positive 
"conclusions." 


Discussion  of  the  Later  Evidence.        99 

The  growth  of  this  tendency  toward  the  modifica- 
tion of   the  old  theory  is  apparent  in   the   mono- 
graph of  Professor  C.  M.  Andrews.^     With  great 
truth   the   author   of    this    monograph    points    out 
the  fact   that  the  philo-Germanist   historians  have 
clothed  the  ancient  Teuton  "  with  those  very  attri- 
butes which  the  political  ideals  of  the  first  half  of 
the  19th  century  were  seeking  to  make  real."^     It 
is  interesting  to  observe  his  conclusion,  drawn  largely 
from  a  study  of  the  Anglo-Saxon  period,  that  the 
freeman  "did  not  have  full  freedom  of  movement, 
nor  of   contract,"   and   that  "his   degradation  was 
jurisdictional  and  economic,"  ^  notwithstanding  the 
fact  that  he  enjoyed  "  political  "  freedom.     Undoubt- 
edly an   advance  will   have   been   made   when   the 
question  is  shifted  from  its  form,  "  were  the  body 
of    the    population    of    England    from    the    Saxon 
conquest   freemen   or   serfs.?"    to  its   juster   form, 
"  what  was  the  condition  of  the  great  mass  of  the 
population?"   and  when  the   attitude   of  historical 
impartiality  shall  be  preserved  not  so  much  toward 
the  historians  as  toward  history.     We  may  continue 
to  juggle  with  the  terms  "serf"   and  "freeman" 

iThe  Old  English  Manor  (1892).     Published  in  the  Johns 
Hopkins  University  series. 
2  Ibid.,  Introd.,  p.  3. 
«  Ibid.,  Introd.,  p.  67. 


v> 


!«ii 


loo    TJie  Mark  in  Europe  and  America. 

without  getting  any  truer  conception  of  the  social 
evolution  of  the  race.  That  the  period  in  question 
was  characterized  by  "freedom'*  in  the  modern 
sense,  and  "  democracy  ''  in  the  modern  sense,  would 
now  scarcely  be  maintained;  but  whether,  through- 
out all  this  period,  there  has  been  a  steady  growth 
from  the  really  unfree  to  the  free,  is  certainly  a 
problem  worth  solution.  It  is  a  part  of  the  larger 
problem  of  the  development  of  the  race. 


V. 


SUMMARY. 

IT   is  easier  to  tear  down   than  it  is  to  rebuild, 
and  it  must  be  admitted  that  the  results  of  the 
investigations  with  which  the  names  of   Fustel  de 
Coulanges  and  Seebohm  are  inseparably  connected 
have  been  more  largely  destructive  than  construc- 
tive.    Objectionable  as  it  is  for  historians  to  have 
to  be  classed  as  Germanists  or  Romanists,  it  is  evi- 
dent that  the  results   thus  far  are  such  as  to  cast 
grave  doubt  upon  Stubbs*  somewhat  extreme  state- 
ment, that  "  from  the  Briton  and  the  Roman  of  the 
5th  century  we  have  received  nothing.''  ^     On  the 
other  hand,  so  far  as  the  continent  is  concerned,  there 
is  reason  to  believe  that  the  influence  of  the  Roman 
villa   system    penetrated   early  within   the   German 
lines  and  contributed  powerfully,  together  with  the 
inherent  feudalistic  tendencies  of  the  Germans,  to 
develop  the  feudal  system.      The  same  tendencies 
that  contributed  to  reduce  the  earlier  colonus  to  a 
prsedial  serf  within  the  Roman  limes,  also  no  doubt 

^  Select  Charters,  Introd.,  p.  3. 


I! 


«i 


I 


1 02     The  Mark  in  Europe  and  America. 

operated  in  Germany  upon    the  weaker   free   land 
owner  to  reduce  him  to  a  similar  condition.      The 
practice    of    "  commendation  **  ^    to    some    powerful 
noble,  who   in   return  for  such   subjection   afforded 
the  protection  which  the   age  demanded,   and  the 
corresponding  practice  of  ''benefices,''  by  which  land 
was  conferred  upon  followers  in  return  for  services 
and  on   condition  of   similar  subjection,   no   doubt 
were  elements  of  the  highest  importance  in  build- 
ing up  the  great  feudal  estates,  and  in  establishing 
firmly  the  feudal  system.^     Similar  influences  were 
no  doubt  in  operation  in  England.     And  it  is  quite 
probable  that,  without  accepting  the  extreme  state- 
•  ments  of  Coote,  who  errs  as  much  on  one  side  as 
the  so-called  Philo-Germanists  do  on  the  other,  the 
Roman  influence  established  by  four  centuries  of 
occupation  did  not  suddenly  cease ;  that  the  Saxon 
conquest  did  not  leave  England  a  tabula  rasa,  so  far 
as  the  Britons  and  Romans  were  concerned.     In  fact 

^  Cf.  the  Salic  law  in  regard  to  commendation,  Tit.  LXII,  i. 
"  Si  quis  alteri  avicam  terram  suam  commendaverit." 

2  It  would  be  a  great  mistake  to  think  of  all  manorial  estates 
as  large.  No  doubt  there  were  many  free  land  owners  culti- 
vating with  few  serfs  or  none  and  possessed  of  small  estates. 
Many  of  these  were  no  doubt  swallowed  up  by  the  feudal  sys- 
tem, but  even  in  Domesday  we  find  great  diversity  in  the  size 
of  manors,  and  many  of  these  have  a  very  small  villain  popu- 
lation upon  them. 


Summary. 


103 


the  evidence  seems  to  accumulate  that  both  these 
races  must  be  taken  into  account  in  the  *  making  of 
England.'  No  doubt  the  "multitude  of  castles'' 
throughout  the  country,  of  which  Bede  speaks,^  as 
well  as  the  Latin  speaking  class  of  people  of  which 
he  tells  us,  indicate  the  late  survival  of  the  Roman 
system.2  Bu^.  \^  addition  to  the  evidences  of  a  large 
production  of  corn  in  Britain  during  the  Roman  oc- 
cupation, and  of  a  large  number  of  permanent  estates, 
Mr.  Seebohm  has  adduced  strong  arguments  for 
believing  that  the  three-field  system  of  agriculture  was 
due  to  the  Romans,  and  that  it  did  not  exist  in  that 
part  of  Germany  from  which  our  ancestors  came.^ 

1  "  Erat  et  civitatibus  quondam  nobilissimis  insignita  praeter 
castella  innumera  quae  et  ipsa  muris,  turribus,  postis,  ac  seris 
erant  instructa  firmissimis." —  Bede,  Eccles.  Hist.,  Bk.  I.  ch.  i. 
The  language  of  the  texts,  as  well  as  his  explanations  else- 
where, render  it  hardly  possible  that  only  fortified  camps  were 
meant 

2  Bede,  Bk.  I,  ch.  7. 

"  There  can  be  no  dispute  as  to  the  high  civilization  which 
Britain  had  attained  in  the  second  and  third  centuries.  It  had 
been  settled  like  other  Roman  colonies,  and  imperial  officials 
had  directed  the  development  of  its  resources."  —  Cunningham, 
Growth  of  English  Industry  and  Commerce,  I,  52. 

*  For  evidence  of  the  agricultural  occupation  of  Britain  by 
the  Romans  and  the  continuation  of  the  Roman  influence,  see 
Scarth's  interesting  Chapters  xviii  and  xix,  and  Appendix  i,  ii, 
and  iii,  in  Roman  Britain.  Skene's  Celtic  Scotland  contains 
interesting  material  on  the  same  subject. 


! 


r 


104    The  Mark  in  Europe  arid  America. 

Similarly  it  must  be  admitted  that  he  has  pretty  nearly 
made  out  his  case  in  regard  to  the  origin  of  the 
open  field  with  its  intermixed  strips,  viz.,  that  it  is 
due  neither  to  the  Saxons  nor  yet  to  the  Romans, 
but  was  adopted  by  each  as  they  found  it,  —  a  posi- 
tion in  which  Gomme  is  in  substantial  agreement 
with  him.^  Seebohm  pushes  back  this  system  into 
the  period  of  the  tribal  organization  of  the  Britons, 
and  finds  its  origin  in  "agricultural  necessity,"  in 
the  custom  of  ^Uoaratiofz^'  or  joint  ploughing,  in 
which  those  uniting  in  it  each  furnished  a  certain 
portion  of  the  plough  team  of  eight  oxen,  or  the 
laborers,  or  the  irons  or  woodwork  of  the  plough. 
But  into  a  discussion  of  this  it  is  not  our  purpose 
to  enter.  It  is  enough  that  it  was  not  brought  to 
England  and  established  by  the  'Teutonic  mark.* 


L 


And  further  back  we  are  not  ready  to  go.     The 


investigation  of  tribal  conditions  is  but  beginning. 
Valuable  contributions  to  the  study  of  tribal  life  and 
tribal  organization,  so  far  as  the  British  isles  are 
concerned,  have  already  been  made  notably  by 
Maine,  Skene,  Sullivan  and  O* Curry.  But  these 
do  not  afford  sufficient  grounds  for  generalizations 
as   to    England,  much   less   for   the   entire  human 

^  Gomme,  Village  Communities. 


Summary. 


105 


race.  The  probability  is  that  with  fuller  knowledge, 
just  as  has  occurred  in  the  biological  sciences,  the 
line  of  demarkation  between  species  will  gradually 
disappear,  and  the  continuity  in  the  stages  of  devel- 
opment, from  the  tribal  organization  to  the  feudal 
system,  will  become  evident. 

Full  account  must  always  be  taken  of  the  complex 
forces  which  have  effected  this  development.  It  is 
useless  and  unreal  to  attempt  to  discover,  in  the 
development  of  the  English  people  and  the  English 
constitution,  an  unmixed  line  of  descent.  Account 
must  be  taken  of  the  ancient  Britons  with  their 
tribal  system  and  modes  of  cultivation,  as  well  as  of 
the  ancient  Saxons  with  their  tribal  system.  The 
effect  on  soil  and  people  and  social  organization  of 
the  Roman  civilization  cannot  be  ignored.  The 
effect  of  the  Romano-British  agrarian  system  and  the 
remnant  population  upon  the  conquering  Saxons  in 
that  particular  stage  of  their  development,  must  be 
taken  into  consideration.  Scarcely  anything  is  yet 
known,  but  much  must  be  known  of  the  exact  nature 
of  the  Danish  influence.^  It  is  possible,  even,  that 
we  may  not  yet  have  correctly  estimated  the  force  and 

1  For  an  interesting  chapter  on  the  Danish  influence,  see 
Cunningham,  Growth  of  English  Industry  and  Commerce, 
I,  83,  et  seq. 


1 


io6    The  Mark  m  Europe  and  America. 

direction  of  the  Norman  influence.^  And  certainly 
the  effect  of  the  christian  doctrine,  that  all  mankind 
are  descended  from  a  common  father,  and  that  all 
alike  owe  allegiance  directly  to  God,  a  doctrine 
which  by  the  14th  century  had  filtered  through  even 
to  the  lowest  class,  must  not  be  lost  sight  of  in 
estimating  the  growth  of  the  freedom  of  the  great 
mass  of  the  people.  It  is  very  poetical,  no  doubt,  to 
trace  our  modern  liberty  to  a  single  source  in  that 
much-be-praised  '^German  forest/'  but  it  is  not 
scientifically  adequate. 

It  is  not  overstating  the  case  to  say  that  the  evi- 
dence  for  a  free  self-governed  village  community, 
practicing  communal  ownership  of  land  and  form- 
ing the  fundamental  unit  upon  which  all  Teutonic 
society  rests,  and  out  of  which  it  arose,  is  insufficient 
to  establish  the  existence  of  such  a  community  upon 
English  soil  or,  for  that  matter,  upon  that  of  Ger- 
many.  On  the  other  hand,  the  non-existence  of 
such  an  institution  is  implied  not  merely  by  the 
absence  of  positive  evidence  of  its  existence,  but  by 
the  known  facts  in  regard  to  an  aristocratic  social 

1  Cf.  the  remarks  of  Professor  Channing,  on  the  various 
influences  affecting  the  development  of  English  institutions,  in 
The  Genesis  of  the  Mass.  Town,  p.  79,  et  seq.  Also,  Elton's 
Origins  of  English  History,  p.  2. 


Summary. 


107 


structure,   in   regard   to   the  private   ownership   of 
land,  and  by  what  we  know  of  the  *  curve '  of  social 
evolution.     In  its  slow  sweep  for  the  past  thousand 
years  we  see  the  great  mass  of  cultivators,  who  were 
under  obligation  to  labor  for  almost,  or  quite,  half 
the  year  at  the  will  of  the  lord,  who  were  subject  to 
servile  payments  and  degrading  exactions,  who  were 
bound  to  the   soil,  gradually  and  painfully  carried 
forward  to  freedom  from  such  degradation  with  the 
undisputed  right  to  freedom  of  movement  and  free- 
dom of  contract.     As  far  back  as  we  can  see  beyond 
this,  rank  and  wealth  and  serfdom  and  inequality 
and   great    landed    estates    are    everywhere    to    be 
found.     It  is  not  unfair  to  infer  that  the  same  curve 
sweeps  backward  through  the  slowly  changing  system 
of  cultivation  to  its  beginnings  in  tribal  settlement. 
If  there  were  no  other  consideration  beyond  the 
continuity  of  ideas,  this  alone  would  lead  to  a  sus- 
picion in  regard  to  the  mark  as  a  "  necessary  stage 
of  development,"  or  as  a  necessary  "  connecting  link  *' 
between  institutions  so  distinctly  similar  as  the  feudal 
system  and   the  patriarchal  system,  from  both  of 
which  it  differs  so  essentially.     The  mark,  with  its 
*  independent  freeman '  who  has  *  never  bowed  his 
neck  to  a  lord,'  who  is  the  'equal'  of  all  other  mark- 
men,  is  conspicuous  for  its  individualism  as  well  as  its 


It 


mi  III 


'I 


i!ii 


1 08     The  Mark  in  Europe  and  America. 

communism.  Its  democracy,  coming  as  it  does 
between  the  patriarchal  and  feudal  regimes,  and  in  a 
warlike  period  which  presented  so  many  opportuni- 
ties for  centralizing  power,  is  hard  to  account  for. 

It  may  be  gratifying  to  some  to  trace  the  origin 
of  the  English  race  by  a  line  of  unmixed  descent  in 
blood  and  institutions,  and  to  find  the  origin  of  our 
liberties  near  the  cradle  of  the  race,  but  the  his- 
torian  must   be  indifferent  as   to  whether  he  finds 
them  there  or  not,  and  his  attitude  must  be  one  of 
inquiry  as  to  whether   the  English    really  was  so 
unlike  all  other  races  that  this  can  be  done.     It  has 
been  one  of  the  strong  characteristics  of  the  Eng- 
lish people  to  attach  great  importance  to  precedent. 
At  every  step  in  the  advance  in  liberty,  from  the 
demand   for   the    enforcement    of   the  laws  of   the 
'  glorious  Edward '  to  the  American  Revolution,  it 
has  been  proclaimed  to  be  the  ancestral  rights  of 
Englishmen.     From  the  Conqueror  to  Victoria  the 
prerogatives  of  royalty  have  never  been  infringed 
upor\,   but  the  people  have  merely  recovered  their 
rights.     The  man  who  is  in  sympathy  with  an  ever- 
advancing  society  will  perhaps  say,  "  Let  them  think 
so  ;  let  them  believe  that  these  rights  are  ancestral, 
if  thereby  human   liberty  is  increased.''     But  the 
historian  will  say,  "  Let  us  seek  for  the  facts  ;  find 
what  grounds  you  may  for  your  progress." 


VI. 


THE    MARK   AMONG    SAVAGES;    PREHISTORIC 

AND    MODERN. 

TT  TE  have  already  mentioned  the  very  much 
^  ^  wider  extension  of  the  village  community 
theory  than  that  which  was  originally  contemplated. 
From  its  position  as  a  Teutonic  institution  with 
Teutonic  freedom,  which  was  thought  to  be  unique, 
it  is  made   first  an  Aryan, ^  and  then  an  universal 


1  For  some  criticism  of  the  attempt  to  liken  the  Indian  village 
community  to  the  theoretic  mark,  see  note  A,  p.  xliv,  in  Ashley's 
Introduction  to  Coulanges'  Origin  of  Property  in  Land.  Pro- 
fessor Ashley  remarks:  "  At  no  stage  of  Indian  agrarian  history 
do  we  find  the  village  community  of  theory,  which  is  '  an  organ- 
ized^ self-acting  group  of  families  exercising  a  common  proprie- 
torship over  a  definite  tract  of  land'  (Maine,  Village  Cotnmuni- 
ties^  pp.  10,  1 2)."  "  Where  the  cultivating  group  are  in  any  real 
sense  proprietors,  they  have  no  corporate  character,  and  when 
they  have  a  corporate  character  they  are  not  proprietors."  See, 
also,  Professor  Montague's  review  of  Baden- Powell's  Land  Sys- 
tem of  British  India,  in  English  Hist.  Review,  April,  1893. 
Vol.  VIII,  p.  392,  Mr.  Montague  sums  up:  "In  neither  type 
of  village,  according  to  the  author  of  this  book,  is  agrarian, 
as  distinct  from  joint  family  ownership,  to  be  found.  Nor,  in 
his  opinion,  is  there  any  evidence  to  show  that  at  any  former 
period  the  body  of  villages  held  the  village  land  in  common. 
He  considers  that  the  raiyatwari  type  of  village,  the  village 


!     •'1 


I  11 


; 


! 


11 


iio    T/ie  Mark  in  Europe  and  Arnerica. 

f  institution.  The  natural  result  is,  that  from  being 
'  an  institution  intermediate  between  the  feudal  on 
the  one  side,  and  the  tribal  and  patriarchal  on  the 
other,  it  is  pushed  further  back  until  it  becomes 
peculiarly  a  tribal  institution.  Examples  are  sought 
to  establish  its  universality  among  such  primitive 
races  as  the  North  American  Indians,  the  Patago- 
nians,  the  Fijis,  the  Basutos,  the  Dyaks,  and  the 
"peaceful  Arafuras."  "The  village  community  is 
thus  presented  to  us  as  a  primitive  institution,  hav- 
ing a  prominent  position  among  the  backward  races, 
and  a  subordinate  position  among  the  advanced 
races.  *'  ^  This  later  tendency  to  discover  traces  of 
the  village  community  in  all  races  which  have  not 
yet  escaped  from  barbarism,  of  course  shifts  the 
question  entirely,  and  places  it  v/here  its  answer 
must  rest  upon  a  larger  knowledge  of  tribal  condi- 
tions and  savage  races  than  we  as  yet  possess.     But 

in  which  separate  property  prevails,  is  the  more  ancient  type 
of  the  two.  .  .  .  But  none  of  these  forms  are  analogous  to 
the  Russian  mir,  to  the  South  Slavonic  house  community^ 
to  the  Swiss  allmend^  or  indeed  to  any  rural  organization 
in  Europe." 

1  G.  L.  Gomme,  The  Village  Community  (1890),  p.  16. 
Attention  has  been  called  to  the  radical  difference  which  the 
presence  of  the  chief  in  the  savage  communities  cited  by 
Gomme  would  make  in  the  mark  theory.  Cf.  Ashley  in  Pol. 
Sci.  Qr.,  March,  1891. 


The  Mark  Among  Savages.  in 

even  here  the  question  must  be  approached  with 
some  care.     It  will  be  easy  enough  to  go  back  to  a 
period  "  when  private  property  in  land  was  a  strug- 
gling novelty,**  ^  when  nomadic  life  was  giving  way 
to  settled  life.     It  ought  not  to  be  difficult  to  show 
that  at  any  period,  and  among  any  races,  civilized  or 
savage,  groups  of  human  beings  have  settled  together 
and  placed  their  abodes  on  a  definite  portion  of  the 
earth's  surface,  that  they  have  cultivated  a  bit  of 
soil  about  their  <*  village,*'  and  that  they  have  made 
more  or  less  use  of  the  uncultivated  soil  lying  around 
this;  and  when  these  are   dignified  by   the  terms 
** village  community,"   "arable  land,"    "waste"   or 
"common  mark,"  it  may  sound  like  a  newly  dis- 
covered institution.     Men  will  gather  into  groups  as 
surely  as  wild  animals  of  a  kind.     The  propensity  to 
herd  together  is  strong  in  this   particular  animal, 
man.      There   will   surely   be  a  certain  concert   of 
action  among  the  members  of  such  a  group.     They 
will  adopt  such  an  economy  as  their  previous  habits 
and  the  exigencies  of  the  case  require  and  admit  of. 
The  similarity  of  the  needs,  of  the  powers,  of  the 
relations  to  external  nature  under  which  such  groups 
are  formed,  will  undoubtedly  be  paralleled  by  a  con- 
siderable similarity  in  their  economic  arrangements. 

^  Pollock's  happy  phrase.  —  Land  Laws,  p.  2. 


i( 


5) 

it 


\S: 


^ 


% 


I!  1^1 


112     The  Mark  in  Europe  and  America. 

But  inductions  from  these  facts  as  to  the  existence 
of  a  definite,  social  and  political  institution,  whose 
existence  has  been  co-extensive  with  the  human 
race,  must  be  accepted  with  caution.  Meanwhile 
the  science  of  ethnology  will  be  affording  us  a 
broader  basis  for  generalization. 


VII. 

THE   MARK  IN   AMERICA. 

ANOTHER  and  still  broader  conception  has  been 
evolved  from  the  village  community  theory. 
This  is  no  less  than  that  the  principle  from  which  it 
springs  finds  its  seat  deep  in  human  nature  itse:f,i 
and  is  ready  to  become  active  whenever  conditions 
are  favorable.     For  what  else  can  be  the  meaning  of 
the  appearance  of  the  Germanic  mark  upon  American 
soil,  the  discovery  of  which  has  been  hailed  with  so 
much  delight  ?     Of  course  the  English  people  had 
passed  through  the  bondage  of  the  feudal  period. 
Of  course  generation  after  generation  had  lived  and 
died,  knowing  nothing  before  or  behind  them   but 
serfdom.     Of  course  all  knowledge  of  that  primitive 
democracy,  in  which  there  was  no  such  thing  as  the 
private  ownership  of  land,  had  not  only  passed  out  of 
memory  but  was  not  apparent  in  the  hidden  docu- 
ments of  a  forgotten  tongue.     But  deep  down  in  the 
inner  consciousness  of  the  race,  transmitted  in  some 
mysterious  way  from  generation  to  generation,  and 
uncorrupted  by  an  outward  environment,  the  prin- 
1  Germanists  would  perhaps  say  "  Anglo-Saxon  "  nature. 


Si 


if 


! 

■'  ' 

! 

t 


:; 


f 

u 
I? 

:t  t 

■  I 

1    ! 


114    T/t£  Mark  in  Europe  and  America. 

ciple  was  preserved.  The  moment  it  is  surrounded 
by  favorable  conditions  in  a  new  continent,  sweep- 
ing away  the  traditions  of  a  thousand  years,  it  leaps 
forth  and  bears  sway  in  the  hearts  of  men  just  as 
it  did  ages  ago  in  the  gloomy  forests  of  Germany. 
Surely,  here  are  the  traces  of  a  primitive  institution 
worth  considering. 

But  what  are  the  evidences  upon  which  the  able 
and  conscientious  historians,  who  have  told  us  that 
the  early  settlers  in  New  England  reproduced  the 
Germanic  mark,  have  based  their  conclusions }     One 
would  naturally  expect  that  a  mature  man  would 
bring  to  a  new  colony  with  him  the  same  ideas  in 
regard   to   property,  the  same  ideas   in   regard   to 
government,  the  same  methods  of  administration,  the 
same  economic  notions,  the  same  habits  which  had 
been  wrought  into  him  during  his  previous  life.     If 
he  did  differently  in  the  new  settlement  from  what 
he  had  done  before,  one  would  naturally  suppose  that 
this  was  due  to  his  new  environment.     Not  some- 
thing in  him,  but  something  in  //,  would  lead  to  the 
adaptation  of  old  modes  of  thought  and  action  to  the 
new  conditions.     But  we  are  told  that  these  new 
conditions  have  had  the  effect  of  bringing  out  of  the 
settler  the  methods  of  the  remote  past,  which  had 
hitherto  lain  unsuspected.     "  The  colonists  go  back 


The  Mark  in  America. 


115 


a  thousand  years  and  begin  again,"  we  are  told.i 
Even  in  the  choice  of  name,  it  is  said,  they  "  returned 
unconsciously  to  the  usage  of  Ine  and  Whitraed,"  ^ 
in  that  they  describe  these  settlements  by  the  words 
town  and  township  which  are  but  the  ancient  tun 
and  tunscipa.  But  why  it  is  thought  necessary  to 
regard  these  words,  which  were  perfectly  familiar 
to  every  Englishman,  as  a  return  to  Ine  and  Whit- 
raed is  not  apparent. 

Of   course   every  fact   which   goes   to  show  the 
direct   continuity  of   the   institutions   which  were 
established  in  the  new  world  with  those  of  the  same 
people  in  the  old  world,  is  full  of  interest.     It  is 
extremely  helpful,  too,  to  consider  how  these  were 
modified  by  the  peculiar  character  of  the  people 
and  the  physical  conditions  of  the  new  settlement. 
These  new  conditions  must  react  upon  the  character 
of  the  settlers,  and  it  is  interesting  to  note  the  effect 
of  such  reaction.     All  facts  bearing  upon  such  a 
stage  in  the  development  of  institutions  must  be 
welcomed.     As  has  been  wisely  remarked,  "  There 
is  much  to  learn  by  the  study  of  the  local  begin- 
nings,   agrarian    and    economic,    of    these    United 

1  Howard,  Introduction  to  Local  Const.  Hist.  U.  S.,  Vol.  I, 
p.  5,.     Cf.  also,  Johns  Hopkins  Univ.  Studies,  Vol.  I,  p.  iS- 
«  Ibid.  p.  52. 


r 


ii6    The  Mark  in  Europe  and  America. 

States."  1     But  when  it  is  asserted  that  the  effect 
of  such  reaction  is  practically  to  cause  a  return  to 
the  institutions  of  a  thousand  or  fifteen  hundred 
years  earlier,  when  it  is  implied  that  the  influences 
which  have  been  operating  during  all   these  cen- 
turies are  insignificant  in  comparison  with  the  vital 
principle  which  has  been  lying  dormant,  waiting  for 
an  opportunity  to  burst  forth,  then  it  must  be  said 
that  this  is  an  application  of  the  doctrine  of  con- 
tinuity for  which  we  are  hardly  prepared.     Professor 
Channing,  whose  studies  of  colonial  institutions  enti- 
tie   his  opinion  to  the  highest  respect,  says,  with 
great  truth,  that  "  there  are  no  sudden  breaks  in  the 
history  of  the  English  race."  a    But  a  return  directly 
to   the    institutions   of   the  times  of   Tacitus  and 
Hengist  and  Horsa  would  be  such  a  break,  and  it 
is  certainly  not  presumption  to  question  that  inter- 
pretation which  is  put  upon  facts  which  would  render 
such  a  conclusion  necessary.     At  least,  where  it  is 
undertaken   to   establish    the   reappearance   of    the 
Germanic  mark   in  America,  it  cannot   be   out   of 
place  to  suggest  that  it  would  be  well  to  wait  until 
we  have  a  little  more  definite  knowledge  in  regard 
to  the  character  of  that  institution.     May  it  not,  in 

»  Adams,  Germanic  Origin  of  New  England  Towns,  p.  38. 
«  The  Genesis  of  the  Massachusetts  Town  (1892),  p.  75. 


~s':. 


The  Mark  in  America. 


117 


fact,  be  premature  to  attempt  to  reconstruct  the 
entire  constitutional  history  of  America  on  the  basis 
of  the  Germanic  mark,  while  the  very  existence  of 
that  institution  is  in  dispute  and  growing  doubt? 
If,  on  the  one  hand,  its  non-existence  as  a  Teutonic 
institution  should  be  accepted,  or,  on  the  other,  the 
village  community  should  be  shown  to  be  a  uni- 
versal form,  through  which  all  tribal  organizations 
pass,  and  in  no  wise  a  peculiarly  Teutonic  institu- 
tion, much  of  the  laborious  comparison  might  be 
found  to  be  in  vain. 

But  even  if  we  should  be  assured  that  the  Ger- 
manic mark  did  exist,  and  that  its  characteristics 
were  those  which  have  been  attributed  to  it,  the 
methods  by  which  it  is  sought  to  show  that  it 
reappeared  on  American  soil  are  not  those  which 
commend  themselves  to  the  scientific  investigator. 
It  is  the  peculiar  task  of  the  scientific  investigator 
to  seek  for  realities  underneath  the  forms  in  which 
these  may  be  clothed.  A  mere  similarity  of  words  is 
to  him  at  once  a  danger-signal.  Yet  it  has  been  one 
of  the  peculiar  features  of  the  discovery  of  the  mark 
in  America  that  it  has  rested,  to  a  considerable 
extent,  upon  a  phraseology  which  has  become  popu- 
lar in  the  discussions  of  the  mark  theory,  and  has 
been    comparatively    unknown    in    ordinary    usage. 


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1 1 8    The  Mark  in  Europe  and  A  merzca. 

Even  one  of  the  first  to  call  attention  to  the  subject, 
Professor  Herbert  B.  Adams,  of  Johns  Hopkins  Uni- 
versity,  in  that  charming  paper  on  **  The  Germanic 
Origin  of  New  England  Towns,''  makes  use  of  a 
terminology  which  suggests  the  comparison,  and 
other  writers  have  erred  still  more  gravely  in  the 
same  direction.  It  is  no  longer  proper  in  these 
discussions  to  speak  of  the  village,  but  the  "  village 
community y'  while  the  area  occupied  by  house-lots 
and  streets  must  be  called  ^^the  village-mark!'  ^  The 
cultivated  lands  about  the  village  must  now  always 
be  described  as  "  the  arable ''  or  "  the  arable  mark  ;  ** 
while  nothing  less  than  "  the  waste  *'  or  the  '*  comfuon- 
mark  "  will  satisfy  us  by  way  of  description  of  the 
uncultivated  lands,  of  which,-  usually,  there  was  a 
great  abundance.  Everything  that  the  villagers  or 
joint-proprietors  do  together  is  described  as  a  "  com- 
munal arrangement,'*  or  evidence  of  a  "communal 
idea."  Their  meetings  are  "folk-moots."  "Com- 
mon" and  "communal,"  "free"  and  "freedom," 
suddenly  occupy  great  space  in  the  description  of 
the  settlements.  Besides  the  phraseology,  which  is 
supposed  to  show  the  striking  similarity  of  the 
New  England  settlement  to  the  "primitive  Teutonic 

^  Cf.  Howard,  Local  Const.  U.  S.,  p.  53:    "Everywhere  in 
New  England  appeared  the  house-lots  or  village  mark." 


The  Mark  in  America. 


119 


mark,"  many  actions  of  the  settlers,  which  were 
those  that  common  sense  would  dictate  under  the 
circumstances,  are  made  to  suggest  the  same  thing. 
Everything  which  can  be  called  "communal,"  or 
which  resembles  a  fact  or  theory  of  which  we  are 
in  possession  concerning  the  ancient  Teutons,  is 
"  derived  from  the  forests  of  Germany." 

Mr.  Herbert  Adams  quotes,  as  illustrative  of  the 
return   to   the    Germanic   habits,   Mourt's  relation, 
in  which  we  are  told  that   the   Plymouth  Pilgrims 
selected  for  settlement  a  piece  of  high,  dry  ground 
which  had  already  been  cultivated,  and  which  was 
near   a    spring   of   good  water.      Now  a   group  of 
men  from  Timbuctoo  would  have  done  no  less.     A 
herd  of  cattle  on  our  western  plains  would  congre- 
gate on  a  pasture  of  high,  dry  ground,  near  plenty  of 
good  water,  if  they  could  find  it.     Even  if  we  quote 
from  Tacitus,  ^Uolunt  .  .  .  tit  fons,  ut  campus,  ut 
nemus  placuity'  we  do  not  make  this  very  natural 
selection  of  the  settlers  due  wholly  to  a  Teutonic 
impulse.     Then,  naturally,   they  all  went   to  work 
with  a  will  to  get  things  in  readiness  to  protect 
themselves  from  sufferings  and  dangers,  known  and 
unknown.    They  worked  together  —  note  the  "com- 
munal" action  —  to  get  the  hill  ready  for  the  ord- 
nance and  for  their  buildings.    They  erected  a  "  com- 


i 


J.' 


1 1- 


i     1 


1  ( 


1 20    TIu  Mark  ifi  Europe  and  America. 

mon "  house  (20  ft.  square)  for  their  '*  common " 
goods.  They  laid  out  a  little  tract,  which  allowing 
for  the  "common  town  street/'  must  have  been 
about  125  X  400  ft,  in  which  "family  allotments'* 
are  made,  each  of  which  was  50  ft.  deep,  and  whose 
width  was  regulated  by  the  very  //^Teutonic  principle 
of  the  number  of  itidividuals  of  which  the  family  is 
composed.  Thus,  we  are  told,  "  on  this  tract  of  cleared 
land  or  the  village  mark,  near  the  spring,  which,  like 
the  springs  spoken  of  by  Tacitus,  etc.,  arose  the 
first  town  or  village  community  in  New  England."  ^ 
"The  land  was  taken  possession  of  as  communal 
domain,  and  the  first  labor  bestowed  upon  it  was 
communal  labor.  But  the  Pilgrims  knew  well  that 
a  principle  of  individuality  must  ^ter  into  the 
development  of  communal  life.  Like  the  Teutons, 
the  Pilgrims  regarded  the  family  as  the  unit  of 
social  order.  .  .  .  Like  the  Teutons,  the  Pilgrims 
took  up  land  in  proportion  to  their  numbers.  .  .  /'  ^ 
That  is,  in  order  that  they  might  get  everybody 
inside  the  little  area  on  which  they  built,  they 
reduced  the  number  of  "families'*  to  nineteen,  and 
then  allotted  three  poles  deep  and  half  a  pole  wide 
—  8^  X  50  ft. — for  every  individual  in  the  family. 

^  Germanic  Origin  of  New  England  Towns,  p.  25. 
2  Ibid.  p.  26. 


The  Mark  in  America. 


121 


But,  we  are  told,  "  an  old  Teutonic  idea  appears  in 
the  notion  of  fencing  and  impaling,"  which  the  set- 
tlers proceeded  to  do,  for  it  is  well  known  that  "  the 
radical  idea  of  a  town  is  that  of  a  place  hedged  in." 
Little  did  our  Pilgrim  forefathers  realize  what  they 
were  doing.     They  no  doubt  thought  that  they  were 
constructing  a  stockade  against  possible  attack  from 
savage  beasts  or  men.     They  were,  in  fact,  recon- 
structing one  of  the  fundamental  institutions  of  the 
Teutonic  race.     Even  gathering  wood  in  the  prime- 
val forest  was  a  "  good  old  Teutonic  fashion,"  and 
the  cattle  pound,  which  the  settlers  at  a  little  later 
period   found  necessary,  was  a  "communal    idea." 
In   fact,    "Plymouth   was   settled    upon    communal 
principles  of  the  strictest  character,"  ^  which  were 
due  neither  to  copartnership  with  the  London  mer- 
chants nor  to  a  spirit  of  Christian  brotherhood,  but 
must   have  been  "inherited   from   Saxon  custom." 
The  settlers  who  established  Salem,  in  like  manner, 
"  found  already  cleared  for  their  use  what  the  ancient 
Germans  would  have  termed  a  mark.     Here  they 
found  camporum  spatia,  the  wide,  extending  spaces, 
in  which,  according  to  Tacitus,  the  Germans  found 
division  of  land  an  easy  matter.     There  can  be  little 
doubt  that  the  first  settlers  of  Naumkeag  found  here 

1  Germanic  Origin  of  New  England  Towns,  p.  33. 


1^. 


ii 


122    The  Mark  in  Europe  and  America. 

as  good  an  opening  as  did  many  German  villages  in 
the  Black  Forest  or  the  Odenwald/*  ^  But  when, 
to  establish  this  reappearance  of  the  Germanic  mark 
upon  American  soil,  our  attention  is  directed  to  the 
fact  that  the  settlers,  *just  as  the  ancient  Germans,' 
did  not  build  all  their  houses  together  with  a  con- 
tinuous wall,  and  we  have  quoted  for  us  with  gravity 
the  words  of  Tacitus,  "  vicos  locanty  non  in  nostrum 
moreniy  connexis  et  coliacrentibiis  acdificiis ;  suam 
qnisqtic  domiini  spatio  ciramtdat,''^  we  are  ready  to 
exclaim,  **  What  need  we  any  further  witness  ?  "  In 
view  of  the  fact  that  we  have  such  a  remarkable  re- 
production of  ancient  institutions,  it  is  to  be  regretted 
that  our  information  in  regard  to  them  is  not  more 
complete.  For  instance,  when  it  is  asserted  that 
"  the  New  England  town  meeting  is  the  '  moot '  of 
the  Anglo-Saxon  *tun,'  resuscitated  with  hardly  a 
circumstance  of  differences'^  we  see  what  a  flood  of 
light  it  would  throw  on  the  town  meeting  if  only 
our  knowledge  of  the  Anglo-Saxon  '  tun '  were 
more  adequate.     It  ought  to  inspire  us  with  a  pro- 

^  Adams,  Village  Communities  of  Cape  Ann  and  Salem, 
p.  14. 

2  Ibid.  p.  31. 

^  Howard's  Introduction  to  the  Local  Constitutional  Hist, 
of  the  United  States,  Vol.  L,  p.  55;  quoted  by  Hosmer,  Anglo- 
Saxon  Freedom,  p.  9.     The  italics  are  mine. 


Tlie  Mark  in  America. 


123 


found  respect  for  our  ancestry  to  learn  that  "all 
America  lay  in  that  ancient  home.'*  ^  We  are  told 
that  the  Plymouth  settlers  did  so  and  so,  "  and,  lo, 
when  all  was  done  the  little  settlement  was  through 
and  throughout,  as  to  internal  and  external  feature, 
essentially  the  same  as  an  Anglo-Saxon  *  tun,'  such 
as  a  boat-load  of  the  followers  of  Hengist  or  Cedric 
might  have  set  up  as  they  coasted  searching  for  a 
home  along  the  isle  of  Thanet  —  or  further  back 
still,  the  same  essentially  as  a  village  of  the  Weser 
or  the  Odenwald,  set  up  in  the  primeval  heathen 
days.'*^  And  so,  mirabile  dictUy  we  find  the  reap- 
pearance of  the  same  ancient  "communal  ideas,'' 
the  same  economic  arrangements,  the  same  political 
institution,  which  neither  all  the  forces  of  the  "  effete 
Roman  civilization,"  nor  the  feudal  system,  nor  the 
Christian  doctrine,  nor  anything  else  had  been  able 
to  change  or  destroy.  And  if,  unfortunately,  the 
settlers  had  not  belonged  to  the  party  which  soon 
came  to  be  called  "roundheads,"  there  is  little  doubt 
but  that  we  should  still  have  found  the  "  long  hair 
proudly  floating  over  a  neck  that  had  never  bowed 

^  Hosmer,  Anglo-Saxon  Freedom,  p.  10. 

2  Anglo-Saxon  Freedom,  p.  116.  Mr.  H.  L.  Osgood,  in  the 
Political  Science  Quarterly,  March,  1891,  has  pithily  said: 
"  The  New  Englander  of  to-day  differs  from  his  ancestor  in 
Schleswig  by  the  experience  and  training  of  fifteen  centuries." 


I 


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124    The  Mark  in  Europe  and  America. 

to  a  lord/'  which,  we  are  assured,  was  one  of  the 
striking  characteristics  of  the  free  Saxon.  Is  there 
not  a  danger  lest  our  boundless  admiration  for  Anglo- 
Saxon  freedom  and  Anglo-Saxon  institutions,  and 
our  desire  to  trace  a  pure  descent  in  blood  and 
institutions,  may  lead  us  to  put  an  interpretation 
upon  history  which  may  be  described  as  verging  upon 
sentimentalism  ?  No  single  principle  can  endure 
unmodified,  or  is  sufficient  to  account  for  social 
development.     We  might  assert  that  the  legend, 

"In  Adam's  fall, 
We  sin-ned  all," 

accounts  for  all  the  ills  that  human  institutions  are 
heir  to;  but  it  is  not  in  such  assertions  that  the 
chief  value  of  the  doctrine  of  historical  continuity  is 
to  be  found.  Constitutional  and  economic  develop- 
ment is  infinitely  complex.  It  proceeds  in  the  lives 
of  men.  Character  is  a  more  important  element  than 
environment  in  the  new  settlement.  There  is  abso- 
lute continuity.  There  are  no  leaps  forward  or 
backward.  All  the  forces  within  and  without,  social 
and  physical,  are  to  be  considered.  And  they  will 
effect  change  in  character  and  institutions.  The 
follower  of  Alfred  must  be  different  from  the  fol- 
lower of  Hengist.  Wat  Tyler  is  not  the  same  as 
the  villain  of  Domesday.     But  the  Puritan  of  New 


The  Mark  i7i  America. 


125 


England   is   the  same  as  the   Puritan  was   in  Old 
England  a  month  ago,  before  he  set  out  to  America. 
And  he  brought  essentially  the  same  institutions  as 
those  which  he  left.     What  there  is  new  in  them, 
what  there  is  progressive,  is  to  be  attributed  to  the 
influence   of   new  conditions   upon   him   and   upon 
them.     His  notions  of  property  have  not  changed, 
his  conception  of  liberty  is  the  same,  his  religious 
beliefs  and  superstitions  remain  as  they  were,  his 
narrowness,  his    bigotry,  his    sturdy    character,  his 
devotion  to  duty,  his  remembrance  of  self-interest 
even   in   "communal**   arrangements,   are   quite   as 
they  were  before.     And  if  we  would  trace  all  the 
things    which    entered    into    his   character   and    his 
institutions,  we  would  have  to  remember  the  English 
Bible  and  Wyclif  and  Augustine  and  the  Roman 
Law,  and  the  doctrine  of  *  natural  rights,'  and  vil- 
lainage and  several  other  things,  quite  as  much  as 
the   unruly  tribes  which    Tacitus   describes.     And 
the  beginning  of  the  task  will  be  in  the  examination 
of  the  evidence  immediately  before  and  immediately 
after  emigration.     Neither  side  of  the  evidence  will 
by  itself  be  sufficient. 

There  can  be  no  other  than  a  feeling  of  profound 
respect  and  even  of  gratitude  to  those  who  have 
sought  to  interpret  American  institutional  history  in 


% 


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I    f 


126    T/ie  Mark  in  Europe  and  America. 

the  light  of  the  supposed  Germanic  mark,  for  their 
contributions  to  a  better  knowledge  of  the  develop- 
ment of  American  institutions,  however  much  we 
may  believe  their  works  marred  by  a  one-sided  inter- 
pretation of  facts.  Yet,  while  there  are  many  things 
peculiar  in  the  character  and  conditions  of  the  New 
England  settlements,  it  is  hardly  possible  to  find  in 
them  any  of  the  distinguishing  characteristics  of  the 
Teutonic  mark  theory  which  may  not  be  otherwise 
accounted  for. 

In  the  first  place,  it  is  not  worth  while  to  consider 
as  evidence  bearing  upon  the  survival  of  the  Germanic 
mark,  all  those  things  which  are  due  merely  to  the 
fact  that  we  are  human  beings  and  dwell  together. 
These  things  the  Puritans  did,  so  far  as  necessary, 
in  their  English  homes;  these  things  any  other  race 
of  men  would  have  done  if  thrown  into  similar  cir- 
cumstances. Nor  is  it  worth  while  to  consider  those 
things  which  are  due  simply  to  human  intelligence 
and  the  ability  to  adapt  one's  self  to  an  emergency. 
In  so  venturesome  an  enterprise,  it  was  natural  that 
the  ingenuity  of  the  settlers  should  be  called  into 
play  to  enable  them  to  "  make  the  best  of  the  situa- 
tion." But  these  things  are  perfectly  obvious.  On 
the  other  hand  it  is  safe  to  affirm  that  the  entire 
body  of  settlers  of  New  England  was   permeated 


TJu  Mark  in  America. 


127 


by  the  notion  of  the  individual  ownership  of  land. 
The  most  fundamental  of  all  the  principles  of  the 
supposed   Germanic   mark   was  wanting,   viz.,   that 
there  can  be  no  ownership  of  land.     This  is  made, 
and  is,  in  fact,  the  most  fundamental  conception  of 
the  theory.     It  is  made,  —  and  is  —  entirely  distinct 
from  the  notion  of  joint  ownership  by  two  or  more 
proprietors.     The  operation  of  partnerships  or  cor- 
porations exercising  a  joint  control  over  their  prop- 
erties   was    sufficiently    well    known    in    the    17th 
century.     Temporary   makeshifts  in  settlement,  or 
even  arrangements  which,  under  the  stress  of  the 
conditions  of  subduing  a  wild  country,  were  main- 
tained  for  a  considerable   time,   are  not   to  be  re- 
garded as  exhibiting  the  fundamental  principles  of 
organization.      Not  only  had  the  settler  no  other 
intention  than  that  of  becoming  the  private  owner 
of   landed  property,  but    "the    private   law  of  real 
property  in  New  England,  was,  in  the  main,   that 
of  the  mother  country."  1     It  is  not  the  mere  fact 
of  the  unbroken  succession  of  the  titles  from  the 
crown  through  the  Plymouth  Company,  the  Council 
of    New   England,    the    Massachusetts    Bay   Com- 
pany, the  General  Court,  the  township  or  individual, 

1  Egleston,    Land   System   in   the   New  England   Colonies 
(1880),  p.  45- 


i  ! 


i  i 


.1 


128    T/ie  Mark  m  Europe  aiid  America. 

but  the  more  important  fact  that  the  people  ex- 
pected to  and  did  own  their  own  lands,  whether 
divided  or  undivided  which  proves  this.  That  in 
some  cases  there  were  settlements  without  due 
authority,  is  nothing  to  the  purpose,  and  such 
irregularities  did  not  long  continue.^  Land  owner- 
ship was,  indeed,  a  fact  of  almost  fundamental 
importance  in  the  New  England  settlements  and 
governments. 

The  "equality"  of  the  ancient  "mark"  is  not 
apparent  in  the  settlement  of  the  new  world.  As  it 
has  been  well  put,  "  In  the  division  of  the  soil  our 
ancestors  were  guided  by  no  visionary  theories  of 
equality."  ^  We  find  the  amounts  of  land  granted 
to  individuals  varying  from  small  house-lots  to  tracts 
of  3200  acres,  though  large  grants  were  excep- 
tional, and  were  usually  made  in  payment  of  advances 
or  of  services.^  While  the  grants  were  kept  design- 
edly small,  they  were  designedly  not  equal. 

The  combination  of  commercial,  religious  and 
political  elements    makes    it    somewhat  difficult   to 

^  "After  1640  no  one  was  permitted  to  settle  on  the  vacant 
lands  within  the  chartered  limits  without  permission."  Chan- 
ning,  Town  and  County  Gov't  in  the  Eng.  Col.  of  N.  A.  (1884), 
p.  24. 

3  Egleston,  p.  145. 

*  Ibid.  p.  19. 


The  Mark  in  America. 


129 


assign  to  each  its  relative  importance.     An  element 
that  cannot  be  overlooked  is  thus  stated:   **But  in 
point  of  fact  and  legal  conception,  it  (the  charter  of 
King  Charles  of  1629)  merely  brought  into  being  an 
English    commercial    organization  —  in    other    and 
modern  words,  it  was  a  17th  century  act  of  incor- 
poration, and  as  such  in  no  way  peculiar.*'     "  It  was 
a  trading  company,  in  which  provision  was  made  for 
the  establishment,  and,  incidentally,  for  the  govern- 
ment of  a  plantation  in  an  uninhabited  land.     And 
this  trading  enterprise,  involving  a  real  estate  specu- 
lation, resulted  in  a  Commonwealth.''  ^     The   same 
author  adds,  ''  The  act  of  commercial  incorporation 
was  almost  immediately  converted  into  something 
very  like  a  civil  institution."  ^     But   while  this  state- 
ment calls  attention  to  an  important  truth,  especially 
so  far  as  the  origin  of  the  land  ownership  is  con- 
cerned, and  in  a  less  degree  to  the  early  mode  of 
administration,  it  bears  the  impress  of  a  failure  to 
realize  the  true  purposes  and  controlling  influence 
of  the  settlement.     It  was   not,  primarily,  a  land- 
jobbing  enterprise.     If  the  form   of  a  commercial 
organization    was    taken,    it    was   but   an    artificial 

1  C.    F.    Adams,   in    "  The  Genesis   of   the    Massachusetts 
Towns,"  p.  28. 

2  Ibid.  p.  30- 


ii 


# 


I    i 

\ 


130    T/ie  Mark  iii  Europe  and  America. 

method  of  accomplishing  the  real  purpose.  The 
authority  to  exercise  governmental  functions  which 
was  a  subordinate  element  in  such  commercial  en- 
terprises, in  these  cases  became  of  the  highest 
importance.  The  commercial  aim  sank  into  insig- 
nificance by  the  side  of  the  aim  to  establish  homes 
and  institutions.  Even  the  "commercial"  form 
quickly  gave  way  to  the  forms  made  necessary  by 
the  real  nature  of  the  colonization. 

The  form  of  organization,  according  to  Professor 
Channing's  view,  depended  on,  **(i)  the  economic 
conditions  of  the  colony;  (2)  the  experience  in  the 
management  of  local  concerns  which  its  founders 
brought  from  the  mother  country;  and  (3)  the  form 
of  church  government  and  the  land  system,  which 
should  be  found  expedient.*'  ^  The  blending  of  the 
charter  of  a  commercial  company  with  the  secular 
and  church  governments,  with  which  the  colonists 
were  familiar,  no  doubt  did  largely  determine  the 
form  of  local  governments.  But  some  of  the 
features  of  the  system  developed  were,  as  has  been 
suggested,  due  to  the  fact  ''  that  it  was  accom- 
plished  by   organized  colonization/' 2     gQ^h  in  the 

^  Town  and  County  Govt,  in  the  Eng.  Colonies  of  N.  A., 
p.  5. 

2  Egleston,  p.  44. 


;  ■  t 


Tlie  Mark  in  America. 


131 


transplanting  of  colonies  from  England  and  in  the 
forming  new  settlements  out  of  the  old,  this  inter- 
nal organization  on  the  basis  of  ties  of  acquaintance, 
or  religion  or  what  not,  and  the  external  care  and 
selection    and    direction    by    central    authority,    are 
facts  of  prime  importance.     For  while  the  internal 
tie  operated  within  certain  limits,  the  external  power 
was    the    source  of   the    property  rights,   and    pre- 
scribed the  rights   and  privileges  which   should  be 
enjoyed.     In   the   case  of   the   Massachusetts  Bay 
Company,  rights,  proprietary  and  governmental,  were 
granted  to  individuals  and  to  groups.     The  ''Gen- 
eral   Court"    was  the   company's   successor  as  the 
source    of    proprietary    and    governmental    rights. 
'*  The  General  Court  adopted  the  system  of  grant- 
ing lands  in  townships  to   seven  or  more  individ- 
uals who  had,  as  a  rule,  the  absolute  disposal  of  the 
lands  so  obtained."  ^      These  persons,   who  formed 
the  "freemen,"  or  "commoners,"  or  "proprietors" 
of  the  township  thus  organized,  were  the  absolute 
owners  of  the  tract,. so  granted,  and  the  only  future 
source  of  ownership  for  any  part  of  the  land  was 
to  be  found  in  them. 

The  grants   sometimes   may  have  been  large  in 
proportion  to  the  number  of  proprietors,  and  some- 

1  Town  and  County  Govt,  in  Eng.  Colonies  of  N.  A.,  p.  24. 


■]! 


132     The  Mark  iri  Europe  and  America. 

times  were  purposely  large  to  allow  for  the  increase 
of  inhabitants  due  to  children  and  servants,  and  per- 
haps also  to  new  settlers  that  might  be  admitted.^ 
There  was  perhaps   sometimes  a   moral   obligation 
resting  upon  the  proprietors  to  make  grants  to  new 
settlers,  on  the  principle,  ^'  Freely  ye  have  received, 
freely  give."     But  there  can  be  no  doubt  not  only 
that  the  legal  title  rested  with  the  original  grantees 
but  that  it  was   in    most    cases    claimed   and  exer- 
cised   by   them.       The   position   of  these   original 
grantees  is  well  stated  by  Mr.  Egleston.2      *' The 
commoners    were    originally   those    to    whom    the 
General  Court  had  made  a  grant  of  land  in   com- 
mon for  settlement,   very  often,  as  we  have  seen, 
without  giving  the  grantees  entire  unfettered  con- 
trol.     They   formed,    as    has   been    held,    a   quasi 
corporation    having    the    power    of .  other    corpora- 
tions for  certain  specified  purposes.     The  right  of 
a  commoner  might  be  conveyed   or   inherited   like 
other  real  estate,  and  one  who  thus  became  entitled 
to  a  right  was  not  necessarily  an  inhabitant,  nor  was 
he  necessarily  entitled  to  vote  in  the  town  meetings 
where  township  privileges  had  been  conferred  upon 
the  inhabitants  of  a  plantation.     On  the  other  hand, 
it  by  no  means  follows  that  because  a  man  was  en- 

1  Cf.  Winthrop's  statement,  quoted  by  Egleston,  p.  26. 

2  Ibid.,  p.  29. 


The  Mark  in  America. 


133 


titled  to  vote  in  the  town,  he  was  also  entitled  to  a 
voice  in  the  control  of  the  common  lands,  or  that 
he  had  any  right  to  them  whatever.  The  land  com- 
munity and  the  political  community  were  distinct 
bodies,  capable  of  dealing  with  other  persons  and 
bodies  and  with  each  other  as  separate  juristic  per- 
sons. Thus  we  find  votes  of  the  town  according 
rights  to  the  proprietors,  or  even  making  engage- 
ments with  them.  The  proprietors,  too,  might  make 
grants  to  the  town  as  to  any  other  parties.*'  ^ 

When  the  proprietors  and  the  inhabitants  were 
identical  there  was  sometimes  a  natural  blending 
of  their  prerogatives  as  citizens  and  land-owners. 
The  need  for  plow  lands  and  grass-lands,  the  cost  of 
making  and  keeping  up  fences,  and  the  haste  neces- 
sary in  constructing  them  in  new  settlements  often 
led  to  the  enclosure  of  lands  together.  "  Necessity 
constraining  the  improvement  of  much  land  in 
common,"  2  as  the  record  puts  it,  several  proprietors, 

1  Such  a  description  is  in  striking  contrast  with  Aristotle's 
categories  of  the  possible  forms  of  communism,  which  were, 
(I)  the  soil  an  individual  possession,  while  its  produce  goes 
into  a  common  stock,  (2)  soil  owned  in  common  while  its  pro- 
duce belonged  to  the  individual,  (3)  both  soil  and  produce  in 
common.  —  Republic,  Book  II,  ch.  iv. 

2  Conn.  Col.  Rec.  I,  loi,  quoted  by  Egleston,  p.  41-  The 
"  necessity  "  of  making  improvements  in  common  for  the  sake 
of  greater  safety  and  economy  is  illustrated  at  a  much  later 


! 


I 


I'' 


n 

A 


I 
I 

;t 


i 

li 
It 

[ 


134    T/ie  Mark  in  Europe  and  America. 

or  all  the  proprietors  of  the  town,  fenced  one  or  more 
fields  in  common.  But  it  is  evident  that  in  most  of 
these  cases  there  was  not  even  joint  ownership. 
We  are  told  that  the  bounds  of  such  lands  lying  in 
common  were  to  be  frequently  perambulated  by  the 
particular  proprietor  and  the  boundary  marks  rigidly 
kept.i  These  plats  of  land  could  be  bought  or  sold 
or  bequeathed  or  subdivided.  Bodies  of  land  were 
sometimes  held  in  undivided  joint  ownership,  but 
joint  ownership  is  no  uncommon  thing  in  any  age 
of  the  world.  In  this  case  its  management  must 
necessarily  take  place  by  the  body  of  its  owners, 
who  were  styled  '^freemen,"  "commoners"  or  "pro- 
prietors," any  one  of  whom  ordinarily  could  dispose 
of  his  individual  share.  Even  where  the  so-called 
"common"  land  under  a  single  fence  was  held  in 
severalty,  it  was  natural  and  necessary  that  the 
group  of  proprietors  should  adopt  regulations  for 
the  keeping  up  of  the  fence,  the  pasturing  of  the 
stock  and  other  inciden .  -  >  [  the  management  of  a 

date  by  a  statute  of  Virginia  recorded  in  Hening,  Vol.  X,  p.  39, 
which  says,  *'  And  whereas  several  families  for  their  greater 
safety  have  settled  themselves  in  villages  or  townships,  under 
some  agreement  between  the  inhabitants  of  laying  off  the  same 
into  town  lots,  to  be  divided  among  them,  and  have  from 
present  necessity,  cultivated  a  piece  of  ground  adjoining  thereto 
in  common  ;  Be  it  enacted,''  etc. 
1  Egleston,  p.  42. 


The  Mark  in  America. 


135 


joint  property.     In  such  cases  there  is  hardly  any 
other  method  open  than  to  submit  matters  affecting 
common  interests  to  the  decision  of  a  majority  of 
the  proprietors,  and  it  is  not  unnatural  and  by  no 
means  unheard-of  that  legal  enactment  should  render 
such  corporate  action  binding.     If  the  enduring  "life 
principle"  of  the  village  community  is  embodied  in 
the  proposition  that  "shareholders  are  subject  to  the 
will  ot  the  majority,"  ^  it  can  hardly  be  said  to  be  a 
new  discovery  of  the  Germanic  mark  on  the  new 
continent.       There    are    abundant    illustrations    of 
communal    ownership    and    management    from    the 
earliest  period   of  settlement   to  the   present    day, 
but  in  most  cases  these  are  but  examples  of  what 
was    already   a    common    practice,    viz.,    the    joint 
ownership    of    an    undivided    but    not    undividable 
property.^      In    the    methods    of    management    of 
these  joint  properties,  or  individual  properties  under 
a  common  fence  and  common  regulations,  there  is  a 
strong   likeness   to    the   manorial    regulations  with 
which  the  settlers  were  familiar.     Of  course  in  many 
cases   "commons"  were  given   to   towns,  or   were 

1  Germanic  Origin  of  N.  Eng.  Towns,  p.  37. 

2  It  should  be  remembered  that  it  is  a  fundamental  propo- 
sition of  the  village  community  theory  that  the  mark  "  belongs 
to  the  freemen  as  a  whole,  not  as  a  partible  possession."  — 
Kemble's  Saxons,  I,  p.  37. 


\\ 


Ill 


i 


136    TAe  Mark  i7i  Europe  and  America. 

provided   for   in    the    original    settlement,    a   most 
natural  outgrowth  of  manorial  customs.     The  reser- 
vation of  such  a  "common''  or  park  by  the  founders 
of  a  modern  city  would  be  very  natural,   and  yet 
would  not  imply  any  "return"  to  communal  owner- 
ship of  land.      The  specific  reservation  of  "Five 
Hundred  acres  of  land  for  public  uses  as  for  build- 
ing of  a  Towne,  Scholes,  Churches,  Hospitalls  and 
for  the  maintenance  of  such  ministers,  magistrates 
and  other  local  officers  as  might  be  chosen  by  the 
corporation,'' 1   was  very   praiseworthy  and  natural 
and  modern,  but  it  is  precisely  the  thing  a  com- 
munity based  on  communal  land  holding  would  not 
have  done.      When  it  is  said  that  "originally,  the 
whole  region   round  about  the  first  settlement  (of 
Salem)  was  common  land,"  2  it  must  be  understood 
in  a  different  sense  from  the  assertion  that  "  all  land 
is  at  first  'common  land,'  "  as  applied  to  the  original 
occupation  of  the  soil.     As  a  matter  of  legal  theory 
and  of  accomplished  fact  the  lands  of  the  original 
American   settlements   were   the    property   of    the 
crown,   and  passed  from   the  crown  to  individuals 
or  corporations,  and  from  these  to  actual  settlers 
either    individually   or   in    groups,    and    so   by   an 

^  Vill.  Com.  of  Cape  Ann  and  Salem,  p.  i. 
^  Ibid.  p.  36. 


The  Mark  in  America. 


137 


unbroken  succession  to  the  present  holders.  If 
there  were  "  squatters  "  upon  the  lands  during  any 
period  of  their  history,  and  if  this  occupation  was 
allowed  to  grow  into  a  pre-emptive  right,  it  in  no 
wise  affects  the  question  at  issue;  but  simply  illus- 
trates the  method  by  which  occupation  and  use 
harden  into  a  right  to  the  thing  so  occupied  and 
used.  Indeed  there  is  an  instructive  lesson  in  the 
method  by  which  popular  privileges  grow  which 
throws  light  backward  upon  the  early  history  of 
the  English.  The  struggle  which  was  made  by 
later  comers,  in  various  settlements,  for  control  and 
ownership  in  the  property  of  the  original  corpora- 
tion, and  the  measure  of  success  with  which  they 
often  met  by  means  of  their  greater  numbers,  are  not 
without  historical  parallel.  The  struggle  of  the  new 
comers  against  the  original  settlers,  —  the  popular 
class  against  the  wealth  and  aristocracy,  —  has  been 
an  important  element  in  the  development  of  more 
than  one  nation.  We  see  in  it  how  "common  rights  " 
grow.  But  however  strongly  we  may  sympathize 
with  the  result  attained,  or  however  much  we  may 
feel  that  the  original  incorporators  were  under  a 
moral  obligation  to  share  their  good  fortune  with 
the  later  comers,  it  cannot  blind  us  to  the  fact 
that  the  triumph  of  the  latter  was  simply  a   sue- 


/ 


II  ' 


:l 


i 


i:|:i 


W. 


138    T/ie  Mark  in  Europe  aiid  America. 

cessful  encroachment  upon  the  legal  rights  of  the 
former. 

One  of  the  elements  of  the  original  commercial 
companies  from   whose   legal    rights    those    of   the 
settlements    sprang,   was    the  governmental  power, 
which  the  nature  of  the   case   rendered   necessary. 
Circumstances    soon     gave    to    the    governmental 
power    an    importance  which  reduced  the  commer- 
cial to  insignificance.     Fortunately,  the  granting  of 
property  rights  passed  into  the  hands  of  the  Gen- 
eral    Court,    and    circumstances     gave    to    this    a 
strongly  democratic   character.       Mutual  fears  and 
dangers,  and  above  all,  the  overwhelming  influence 
of  the  religious  element,  developed  the  closely-knit, 
compact,  self-governed  groups,  which  are  so  striking 
a   characteristic   of   the    New  England   settlement. 
The   elements   all    existed   immediately  before  the 
settlement.     The  combination   of  these,  under  the 
new  conditions,  produced  phenomena  which  might, 
perhaps,  be   described    as    new,  but   of   which    the 
essentials  were  all   old.     A   careful   comparison   of 
the  English  model  with  the  American  community  at 
its  beginning,  may  show  that   the   differences  are 
very  slight.     The  ''communar'  features  were  those 
which  were  due  to  the  loneliness  and  dangers  of  the 
wilderness,   and  to  a   strongly  centralizing  church 


\ 


The  Mark  in  America. 


139 


system;  and  perhaps,  in  a  degree,  to  the  example 
of  the  English  manorial  life.  They  were  not  due 
to  communal  land  occupation.  They  were  not  due 
to  any  absence  of  individual  ownership  in  land. 
The  "equality"  of  the  mark  is  not  visible,  either 
in  land-holding  or  government.  Even  the  democ- 
racy is  not  of  that  "idyllic"  character  which  the 
mark  theory  presents. 

The  communal  and  the  democratic  features  of  the 
new  settlement  are,  indeed,  interesting.    The  mighty 
impulse  given  to  the  growing  spirit  of  liberty  and 
self-government  in  the  English  race  by  this  Amer- 
ican colonization  cannot  be  overlooked.     But  it  was 
merely   a   greater   stride   here    in  an  advancement 
which  was  taking  place  more  slowly,  but  none  the 
less  surely,  there.     The  connection  was  unbroken. 
There  was  less  to  hamper  it  here  than  there.     And 
in  the  movement   was  embodied  all   the  elements 
which  the  race  had  gathered  in  fifteen  centuries  of 
progress,  not  the  least  of  which  were  new  concep- 
tions of  law,  and  a  truer  conception  of  the  basis 
upon  which  all  human  liberty  rests.     The  German 
democracy,  such  as  it  was,  rested  on  a  substructure 
of  serfdom  and  slavery,  and  ignorance  of  the  rights 
of  man  as  man.     The  new  democracy,  whose  coming 
the  American    settlements  hastened,  acknowledges 


i 


li 


^ 


140    T^  Mark  in  Europe  and  America. 

no  such  origin.  If  one  wishes  to  trace  the  ever- 
widening  stream  to  its  sources,  he  will  no  doubt  find 
that  one  slender  brooklet  heads  in  the  German  forest, 
but  only  one. 


lil 


ii    \ 


.  VIII. 

THE   MARK   IN    ECONOMIC   DISCUSSION. 

IT    is,  perhaps,  to   be   expected   that    a   healthy, 
normal  individual,  in  the  present  day,  will  be 
in  sympathy  with  the  democratic  tendencies  of  the 
age,  and  that  he  will  rejoice  in  the  triumph  of  the 
masses  over  the  classes.     But  it  is  a  curious  fact, 
illustrative  of  a  striking  characteristic  of  the  Eng- 
lish race,  that  we  cannot  rest   easy  until  we  have 
the  assurance  of  historical  precedent.     The  triumph 
must  prove  to  be  the  realization  of  some  right  or 
privilege  of  which  we  have  long  been  deprived.     It 
matters   not   if   ages  have  passed  over  the  buried 
right;  all  that  is  necessary  is  that  the  past  should 
furnish   a    justification    for    its    present    existence. 
This    conservative    trait    has  useful    consequences, 
but  it  ought  not  to   prevent   us  from  resting  our 
demand  for  the  better,  upon  the  true,  rather  than 
upon  the  untrue.     It  is  not  likely  that  the  course  of 
human   progress  will   be   retarded   by  putting   the 
"  Golden  Age  ''  in  front,  instead  of  behind  us,  or  by 
a  popular  knowledge  of  what  the  race  is  proceeding 
from^  and  what  it  is  proceeding  towards.     If  democ- 


i 

f  • 

i 


I 


I 


I 


4 


142     T/ie  Mark  in  Europe  and  America. 

racy  is  the  ultimate  goal  of  mankind,  let  it  be  shown 
to  be  so  from  the  nature  and  needs  of  man.      If 
altruism  ought  to  end  in  communism,  there  is  no 
need  of  an  historical  example.     If  individual  selfish- 
ness should  give  way  to  the  public  welfare,  it  is  not 
because  the  history  of  mankind  shows  that  it  has 
heretofore  done  so.     If  individual  ownership  of  land 
is  an  unmixed  evil,  let  a  demand  for  national  owner- 
ship,  or   international   ownership   rest   on   its  tru 
basis.     It  should  not  be  deemed  necessary  that  such 
causes  should  struggle  to  get  a  foot-hold  on  the  poor 
Teutonic  mark,  as  a  place  of  beginning.     Yet,  while 
it  is  asserted  that  "if  it  were  true  that  land  had 
always  been  treated  as  communal  property,  that  would 
not  prove  the  justice  or  necessity  of  continuing  it,"  ^ 
yet  the  assertion  that  the  original  form  of  perma- 
nent land-holding  was  communal  is  made  to  serve 
as  the  basis  for  the  demand  for  what  its  advocates 
are  pleased  to  call  a  "return"  to  communal  owner- 
ship.    "  All  land  was  once  occupied  and  cultivated 
in  common,  therefore  all  land  should  now  be  com- 
munal,"   is   the   force   of  the   argument.       But    if 
the    premise    rest    on    insufficient    grounds,    what 
becomes  of  the  conclusion  >.     Even  when  the  premise 
has  been  admitted,  it  is  not  surprising  that  we  should 

1  Henry  George,  Progress  and  Poverty,  p.  331. 


TIu  Mark  in  Economic  Discussion.     143 

see   it   made    the   basis   of   directly   opposite    con- 
clusions.    On  the  one  hand,  it  has  been  made  the 
basis  of  arguments  to  show  that  the  evolution  of 
private  property  in  land   had   been   the  means  of 
advancing  the  welfare  and  prosperity  of  the  human 
race,  and  contributing  towards  its  highest  develop- 
ment;  and,  on  the  other  hand,  to  show  that  the 
only  possibility  of  human  advancement  would  be  in 
the  "return"  to  primitive,  communal  ownership.* 

In  the  attacks   upon   the   institution   of   private 
property  in  land,  the  charge  that  historically  it  had 
its  origin  in  robbery,  rests  upon  two  distinct  bases 
which  are  confounded.     The  one  is  that  all  the  land 
originally  belonged  to  all  the  people,  and  that  some 
of  the  people  have  taken  charge  of  some  of  it  to 
the  exclusion  of  the  rest  of  the  people.     The  other 
is  that  by  war  and  conquest,  and  theft,  the  lands 
have  changed  hands  in  the  course  of  the  ages,  and 
that  hence  the  present  ownership  is  unjust.     Yet  in 
the  latter  case  the  principle  of  ownership  is  not  in 
question,  but  the  possibility  of  undoing  the  results  of 
a  series  of  wars  and  restoring  property  to  its  rightful 
possessor.     There  could  have  been  no  robbery  of 
the  land  by  conquest  if  there  had  been  no  ownership 
to  begin  with.     It  is  one  thing  to  assert  that  the  man 
1  Cf.  Ashley,  Introd.  to  Origin  of  Property,  p.  xliv. 


4 

li 


iUiiniab. 


i 


144    The  Mark  in  Europe  and  America. 

who  has  stolen  my  pen-knife  possesses  it  unjustly 
and  quite  another  thing  to  prove  that  ownership  of 
pocket-knives  is  founded  on  injustice.    Yet  these  two 
Ideas  are  constantly  confused.     It  is  not  this  vio- 
lent taking  of  property  from  one  man  by  another 
man  that  is  in  mind  when  the  "restoring  "  and  the 
"returning"  of  the  land  to  its  original  ownership  is 
talked  of.     It  is  not  that  Jute  robbed  Briton,  and 
Norman  robbed   Saxon  that  is  complained  of,  and 
would  be  remedied;  it  is  that  any  should  have  taken 
possession  of  and  held  for  private  use  any  portion 
of  the  earth's  surface;  and  the  "restoration  "  aimed 
at    IS   the  taking  away  of  such  lands  from  their 
possessor,  and  the  bestowal  in  some  way  of  their 
use  upon  all  men.     The  "  resumption  of  land  as 
common  property,"  which  is  so  freely  talked  of,  has 
nothmg  to  do  with  the  wars  and  conquests,  which 
have  been  as  destructive  of  property  rights  as  of 
life,  but  looks  back  to  a  supposed  condition  of  things 
before  landed  property  began.     "All  land  was  In 
the  beginning  common  land,"  we  are  told.     "Com- 
mon right  to  land  has  been  everywhere  primarily 
recognized,   and   private   property  is   the   result  of 
usurpation."  1     "Everywhere  the  common  right  of 
men  to  the  use  of  the  earth  has  been  recognized, 

1  George,  Progress  and  Poverty,  p.  332. 


The  Mark  in  Economic  Discussion.     145 


and  nowhere  has  restrictive  ownership  been  freely 
adopted."  ^  "  Historically  private  property  in  land 
is  robbery."  2  "Everywhere  has  existed  common 
property  in  which  the  rights  of  all  were  equal."  ^ 
"  The  idea  of  individual  property  in  land  is  derived 
from  Rome."*  "In  all  primitive  society  the  soil 
was  the  joint  property  of  the  tribes,  and  was  sub- 
ject to  periodical  distribution  among  all  the  fam- 
ilies so  that  all  might  live  by  their  labor  as  Nature 
ordained."  ^  "  Cest  seidcnicnt  pas  line  serie  de  pro- 
grh  succcssifs,  et  h  tine  ^poque  relativement  rkente,, 
que  s'cst  constitute  la  propri^t^  individuelle  appliqui 

1  George,  Progress  and  Poverty,  p.  333' 

«  Ibid.  p.  333. 

«  Ibid.  p.  333. 

*  Ibid.  p.  335.  Mr.  George  should  not  have  forgotten  Abra- 
ham's offer  to  the  children  of  Heth,  "  I  will  give  thee  money 
for  the  field,"  and  their  reply,  "  the  land  is  worth  four  hundred 
shekels  of  silver  ; "  and  the  result,  "  and  Abraham  weighed  to 
Ephron  the  silver,  current  money  with  the  merchant.  And  the 
field  of  Ephron  which  was  in  Macpelah,  which  was  before 
Mamre,  the  field,  and  the  cave  which  was  therein,  and  all  the 
trees  that  were  in  the  field,  that  were  in  all  the  borders  round 
about  were  made  sure  unto  Abraham  for  a  possession  in  the 
presence  of  the  children  of  Heth  before  all  that  went  in  at  the 
gate  of  the  city."  Genesis  23.  But  perhaps  it  was  thought 
impossible  to  trace  the  continuity  of  the  "  idea "  from  a  non- 
Aryan  source. 

«  Laveleye  (Prim.  Prop.,  p.  xvii),  as  quoted  by  George,  Prog. 

and  Pov.,  p.  334. 


1 


I 


I 


f 


\' 


146    T/ic  Mark  in  Europe  and  America. 

a  la  tcrrcT^  Laveleye  again  tells  us  that  the 
exclusive  dominium,  personal  and  hereditary,  applied 
to  land  is  a  fact  relatively  very  recent,  and  that  for 
a  long  time  men  knew  and  practiced  only  .collective 
possession.2  He  tells  us  that  the  generally  accepted 
theory  of  property  must  be  reconstructed,  because 
it  rests  on  premises  which  are  directly  contra- 
dictory to  the  facts  of  history  and  to  the  conclusions 
to  which  these  lead.^  We  are  assured  that  the 
socialistic  policy  is  but  a  return  to  the  ancient  order 
of  things;^  from  which  we  are  supposed   to   infer 

1  Laveleye,  De  la  Propri^t^,  p.  4. 

2  Ibid.   Introd.,  p.  xii.;  cf.  also  Ibid.  p.  380. 
^  Ibid.  p.  xviii. 

*  ''  L'idee  socialiste  est  chez  nous  un  heritage  de  Tancienne 
regime  .  .  .  cette  fa^on  d'entendre  la  liberty  n'est  pas  n^e  des 
predictions  modernes,  ni  des  promesses  des  demagogues,  ni  de 
I'abus  de  la  presse;  elle  proc^de  de  souvenirs  et  de  traditions 
que  rien  ne  peut  effacer."— M.  Silvela,  as  quoted  by  Laveleye, 
Ibid.  p.  338.     '*  Communal  property  .  .  .  was  an  old  Teutonic 

institution,  which  lived  on  undercover  of  feudalism." Karl 

Marx,  Capital  (translated  by  Aveling),  Appleton  ed.  1889. 
The  same  assumption  of  the  original  communal  ownership  of 
land  by  Teutonic  society  is  evident  throughout  Marx's  writings. 
The  same  assumption  is  to  be  seen  in  Fr.  Engel's  Preface 
(1883)  to  the  manifesto  of  the  Communist  League  ..."..  that 
accordingly  (since  the  dissolution  of  the  primitive  common 
property  in  land)  the  entire  history  is  a  history  of  class  strug- 
gles—struggles between  exploited  and  exploiting,  ruled  and 
ruling,  etc."  — As  quoted  by  Kirkup,  History  of  Socialism 
(1892),  p.  160. 


TJie  Mark  in  Economic  Discussion.     147 


that,  therefore,  it  should  receive  ready  acceptance. 
We  are  told  that  most  jurists  and  economists  *^have 
established    ownership  on    hypotheses    contradicted 
by  history,  or  on  reasonings  whose  necessary  con- 
clusions must  be  in  opposition  with  that  which  they 
wish  to  show/'  1  all  of  which,  if  true,  would  place  the 
rights  of  property  on  a  slender  foundation.     But  in 
this  statement  there  lurks  a  suspicion  of  that  most 
mechanical  supposition,  which  one  finds  not  at  all 
infrequently,  that  property  is  somehow  the  creation 
of  the  lawyers  and  the  theorists.     It  is  the  creation 
of  the  race.     Lawyers  and  theorists  have  just  about 
the   same   relation  to   it  that  grammarians  have  to 
language  and  literature.     It  may,  indeed,  be  affirmed 
that    the    race  has    made  a  mistake    in    developing 
this   institution,  but    this  must  appear  on   its  own 
grounds.     It  is  not  surprising,  considering  the  tre- 
mendous conservative  force  of  an  institution  resting 
on  the  theory  and  practice  of  the  race  for  ages,  that 
those  who  seek  to  bring  about  changes  in  the  present 
order  of  things  should  shrewdly  attempt  to  weaken 
the  historical  support.     Such  a  development  of  an 
institution  by  the  race  is  not  only  regarded  but  is 
strong  presumptive  evidence  of  its  importance  and 
value. 

1  Laveleye,  De  la  Propriety,  p.  379. 


f 


in 


:L 


1 


148    T/ie  Mark  in  Europe  and  America. 

Even  Mill,  who  does  not  appear  until  very  late  to 
have  been  affected  by  the  theory  of  the  Teutonic 
mark,i   but  regarded  "the  feudal  family"  as  "the 
last   historical   form    of    the    patriarchal    family,"  2 
was  so  impressed  with  certain  crying  evils  in  the 
English  land  system  that  he  speaks  of  "the  bulk 
of  the  community "  as  being  "disinherited  of  their 
rights."  3     But  Mill's  views  in  regard  to  land  hold- 
ing were  based  upon  other  considerations  than  his- 
torical evidence  of  communal  holding  of  land.     Yet 
he  hailed  the  appearance  of  the  mark  theory  as  an 
aid  in  reforming  the  land  system  because  it  would  be 
"  a  powerful  solvent  of  a  large  class  of  conservative 
prejudices,"  and  because  "it  opens  up  the  question 
whether  the  earlier  or  the  later   ideas   are   better 
suited  to  our  purpose."  *     It  is  what  Sir  Frederick 
Pollock  speaks  of  as  the  "  absolute  and  unlimited  and 
ingrained  idea  of  private  property  in  land,"^   that 
Mill    objects   to.       His   position   was   that   private 
property  did  not  have  its  foundation  in  the  nature 

Mn  fact  the  theory  is  said  to  have  attracted  little  attention 
in  England  until  the  appearance  of  Nasse's  pamphlet  (1871) 
and  Sir  Henry  Maine's  Village  Communities  (1871). 

2  Mill,  Prin.  Pol.  Econ.,  Bk.  II,  ch.  2,  §  3. 

»  Ibid.  Bk.  II,  ch.  2,  §  6. 

*  See  his  Review  of  Maine's  Village  Communities  in  the 
Fortnightly  Review,  1 87 1 ,  Vol.  I,  p.  544. 

*  Land  Laws,  pp.  15,  i6,  foot  note. 


The  Mark  in  Economic  Discussion.     149 

t 

of  things,  in  eternal  right,  but  that  it  was  an  inven- 
tion of  man,  and  like  other  inventions,  even  if  good, 
'must  perforce  give  place  to  better/      He  objects  to 
the   political   thinkers   who   "may  have  been  over- 
confident   in    their    power  of  deducing   systems   of 
social  truth  from  abstract  human  nature,"  ^  and  he 
welcomes  the  village  community  theory  as  showing 
that  "property  in  land  has  not  been,  and  is  not,  one 
simple    idea,  one   conception  of  rights   always    the 
same/' 2      He  looked  upon  the  village    community 
theory  as  merely  clearing  the  way  for  the  proposal 
of  any  new  theory  which   might  promise  to  better 
the  condition  of  the  race,  though  he  did  not  per- 
sonally  look   forward   to    the    entire    abolition    of 
private    property    in    land.^      Believing   as    he    did 
that  land  is  essentially  different  from  other  kinds 
of  property,  and  impressed  with  the  evils  to  society 
resulting  from  the  existence  of  great  landed  estates, 
he   was    ready  to  welcome  anything  which    should 
weaken  the  force   of   the   historical   precedent  for 

1  Fortnightly,  1871,  I,  543- 

2  Ibid.  p.  549. 

«  M.  de  Laveleye  gives  an  interesting  letter  from  Mill  in 
which  after  expressing  his  interest  in  Laveleye's  work  he  says, 
"Mais  je  ne  crois  pas  que  Ton  puisse  nier  que  les  reformes  k 
faire  dans  Tinstitution  de  la  propri^td  consistent  surtout  k 
organiser  quelque  mode  de  propri^t^  collective  en  concurrence 
avec  la  propridt^  individuelle."  —  Prim.  Prop.  p.  xiii. 


Ii 


150    The  Mark  {71  Europe  and  America. 

landed  property,  and  it  is  with  evident  satisfaction 
that  he  calls  attention  to  the  fact  that  even  **in 
England,  for  some  time  past,  the  idea  of  absolute 
property  in  land  has  been  sensibly  weakened/'  ^ 

The  mark  theory  which  asserts  the  **  natural  right,'* 
as  Henry  George  calls  it,  of  every  man  to  the  use 
of  the  land,  and  which  denies  the  right  of  any  to 
the  ownership  of  land,  has  been  closely  connected 
with  the  mark  theory  which  is  supposed  to  repre- 
sent the  '^natural "  form  of  landholding.  In  this  day 
when  there  is  a  general  disposition  to  sniff  at  '*  natural 
rights''  as  an  effusion  of  the  philosophic  brain,  the 
historical  support  of  communism  is  likely  to  prove 
stronger  than  the  philosophical.  "I  have  a  prop- 
erty in  myself,"  says  a  recent  writer.^  **!  have  the 
right  to  be  free.  All  that  proceeds  from  myself, 
my  thoughts,  my  writings,  my  works  are  property ; 
but  no  man  made  the  land  and  therefore  it  is  not  7 
property."  The  possibility  of  carrying  into  effect 
such  a  distinction  could  be  realized  more  per- 
fectly if  it  did  not  seem  necessary  to  embody  ''  all 

1  Fortnightly,  1871,  I,  552.  MiU  had  the  highest  possible 
respect  for  vested  rights  and  it  was  only  so  far  as  the  future 
increase  in  the  value  of  land,  due  to  increasing  population,  was 
concerned  that  he  desired  its  appropriation  by  the  state. 

2  Joseph  Fisher,  History  of  Land-holding  in  England  (1875), 
Intro. 


The  Mark  m  Economic  Discussion.     151 

that  proceeds  from  myself"  in  some  material  form. 
Great  use  is  made  of  the  phrase,   '^  The  land,  like 
the  air  is  the  free  gift  of  Nature,"  or  -the  free  gift 
of  God  to  man,"  —  if  the  one  who  repeats  it  chances 
to  be  of   a   religious    turn.       Well,    what    is    not? 
Certainly,  land  is  the  free  gift  of  God  to  man,  and 
so    is    every   other   natural    substance   and   natural 
force   of   which  we  are   cognizant.      The  soil,   the 
water;    wood,    iron,    stone  for    shelter;     sheep   for 
wool,    the    cotton    plant    for    cotton;     animals    and 
plant    life   for   food;    the    powers    of   growth;    the 
physical  forces;  — all  are  the  free  gifts  of  nature. 
They  not  only  stand  waiting  to  be  used,  but  if  man 
does  not  use  them  he  must  perish.     But  to  use  them 
one  must  have  undisputed  possession  of  the  natural 
substance  upon  which  his  labor  is  expended  in  fitting 
it  for  use.     This  is  as  true  of  the  soil  as  of  the  iron 
or  wood,  the  wool,  the  horse  or  the  cow.     The  denial 
of  the   possibility  of  ownership  in   the   one   is  the 
denial  of  the  possibility  of  property  in  all.     A  classi- 
fication of  property  into  movable  and  immovable,  or 
in  a  dozen  other  ways  is  possible,  but  a  classification 
into  things  which  are  "the  free  gifts  of  nature"  and 
those  which  are  not,  is  not  possible.     There  is  no 
essential  difference   in   the  nature   of    the   material 
basis  of  the  objects  of  ownership.      If  it  is  urged 


■!  ' 


s:^! 


f 


I 


152    T/ie  Mark  in  Europe  and  America. 

that  the  soil  is  limited  in  extent,  it  may  be  replied 
that  almost  all  other  material  substances  are  more 
limited,  and  furthermore  that   when  used  they  are 
destroyed  forever.     If  it  is  meant  that  all  material 
substances  are  to  be  classified  under  the  term  land, 
then  not  only  is  it  made  more  difficult  for  the  indi- 
vidual to   secure   possession    of   the  material   upon 
which    his    labor   must   be  bestowed,   but   absolute 
ownership  in  anything  is  rendered  impossible;    the 
more  limited  and  destructible  the  material  the  more 
impossible  is  the  idea  of  ownership. 

Whatever  may  be  the  philosophical  justification 
of  property,  or  whether  it  have  any  or  not,  it  cannot 
be  successfully  maintained  that  there  is  any  sufficient 
ground  for  a  distinction  in  ownership  in  the  various 
kinds  of  natural  agents  upon  which  labor  has  been 
expended,   and  which   to  a  greater  or   less    extent 
embody  it.     Even  if  we  were  to  attempt  the  niceties 
of   distinction   which    St.  Thomas    Aquinas   makes 
between  objects  ^' whose  use  is  their  consumption" 
and  objects^*  whose  use  is  not  their  consumption," 
we  could  not  get  a  classification  of  natural  agents, 
from  the  enduring  iron  and  the  less  enduring  soil, 
to   the   delicate   morsel   or   precious   perfume    that 
perishes   in    the   using,   which  would   justify  us  in 
saying,  ''  this  by  '  natural  right '  may  become  prop- 


The  Mark  in  Economic  Discussion.     153 


erty,  and  this  may  not.''  Property  in  land  has 
precisely  the  same  philosophic  basis  as  other  kinds 
of  property.  Say,  if  you  will,  that  property  in 
slaves  had  as  good  a  basis;  but  slavery  has  not 
been  overthrown  by  declaring  that  slavery  in  the 
past  is  an  historical  myth.  No  more  will  property 
rights   be  overthrown  by  such  an  argument,  even 

if  justified. 

Nor  is  the  possibility  of  an  *' unearned  incre- 
ment" peculiar  to  land.  It  is  unimportant  that 
such  "  unearned  increment  "  is,  in  the  normal  case, 
much  less  frequent  than  is  sometimes  supposed.^ 
If  it  ought  to  go  to  society  at  large,  then  it  would 
be  wiser  to  make  objection  to  the  private  owner- 
ship of  "unearned  increments,"  than  to  the  private 
ownership  of  land;  and  other  forms  of  property 
would  furnish  abundant  instances  in  which  the 
"  unearned  increment "  might  be  claimed. 

One  may  see  evils  in  the  control  of  large  areas  of 
land  by  a  few  individuals,  but  this  can  no  more  be 
taken  as  proof  of  the  iniquity  of  private  ownership 

1  Therold  Rogers  says  that  he  had  long  ago  come  to  the 
conclusion  that  "very  possibly  the  *  unearned  increment'  of 
the  future  was  entirely  hypothetical  and  probably  visionary, 
certainly  too  doubtful  to  admit  of  being  made  the  basis  of  a 
gigantic  operation."  —  The  Economic  Interpretation  of  His- 
tory, p.  516. 


f 


I    ; 


I 


154    The  Mark  in  Europe  and  America. 

of  land  per  se,  than  the  benefits  of  small  peasant 
proprieties  can  be  made  its  justification.  The 
evils  charged  may  be  good  grounds  for  criticism  of 
the  causes  which  have  produced  and  perpetuated 
large  landed  estates ;  they  may  be  grounds  for  plans 
for  the  easy  division,  alienation  and  transfer  of  landed 
property;  but  they  are  not  good  grounds  for  objec- 
tion to  the  institution  itself.  And  when  the  attack 
upon  private  property  is  made  to  receive  its  chief 
support  from  a  supposed  form  of  primitive  land- 
holding,  we  see  the  possibilities  of  the  uses  to  which 
an  historical  dogma  may  be  put. 

That  in  the  process  of  the  evolution  of  prop- 
erty, not  every  kind  of  property  came  into  exist- 
ence at  the  same  time,  may  be  taken  as  a  matter 
of  course.  That  property  in  land  was  of  much 
slower  development,  and  could  not  have  preceded 
permanent  settlement,  is  pretty  certain.  That  the 
family  was  the  ''individual,''  in  all  forms  of  prim- 
itive ownership,  may  be  regarded  as  pretty  well 
established.  That  property  is  thus  an  institution 
created  by  man  in  the  course  of  time  can  doubt- 
less be  maintained  successfully.  Some  forms  of 
property,  which  now  are  supposed  to  find  ample 
justification,  such  as  those  guaranteed  by  patent 
and  copy-rights,  are  of  very  late  development.     They 


The  Mark  in  Economic  Discussion.     155 

apparently  need  no  historical  justification.  And 
it  will  be  very  hard  to  convince  men  that  indi- 
vidual property  does  not  correspond  very  closely  to 
the  nature  and  needs  of  all  men ;  that  it  has  not,  in 
some  form,  shown  itself  among  all  men ;  that  it  has 
not,  upon  the  whole,  been  a  beneficent  institution. 
It  will  be  hard  to  convince  them  that  property  in 
land  is  peculiar,  and  unlike  other  property.  It  will 
be  hard  to  convince  them  that  the  Germanic  mark 
occupies  such  an  important  place  in  determining  the 
nature  of  our  institutions,  —  at  least,  until  there  is 
more  evidence  for  its  existence. 

The  way  in  which  an  historical  dogma  comes 
to  affect  all  social,  political  and  economic  insti- 
tutions, is  a  perpetual  caution  to  one  who  would 
investigate  their  origin.  Inductions  from  present 
observation  to  past  conditions,  or  from  past  condi- 
tions to  present  duties,  are  not  to  be  made  hastily, 
or  without  large  allowances  for  errors.  The  hypoth- 
esis of  the  Germanic  mark  has,  no  doubt,  served  a 
useful  purpose  as  a  center  around  which  the  study 
of  primitive  institutions  might  gather.  It  is,  per- 
haps, time  to  lay  it  aside  as  a  dogma,  and  approach 
the  subject  from  a  new  standpoint,  viz.,  the  unbroken 
continuity  of  human  life  and  human  institutions. 


i 


1;  I 


AUTHORS    REFERRED   TO   IN   THIS   VOLUME. 


-•O*- 


Adams,  Herbert  B.     The  Germanic  Origin  of  New  England  Towns. 
Village  Communities  of  Cape  Anne  and  Salem.     (Johns  Hopkins 
University  Studies,  Vol.  I,  1883.) 
Adams,  C.  F.     The  Genesis  of  the  Massachusetts  Towns,  Proc. 

Mass.  Hist.  Soc,  1892. 
Allen,  Wm.  F.     Monographs  and  Essays  (1890),— containing  a 
series  of  Essays  and  Reviews  on  the  Mark  Theory.     (Pub- 
lished after  the  author's  death.) 
Andrews,  Chas.  M.     The  Old  English  Manor,  1892. 
Anglo-Saxon  Chronicle.     (Bohn's  ed.) 

Ashley,  Wm.  J.     An  Introduction  to  English  Economic  History 
and  Theory,  Vol.  I,  1888. 
Introduction  to  Fustel  de  Coulanges'  Origin  of  Property  in 

Land,  1892. 
Review  of  Vinogradoff 's  "  Villainage  in  England  "  in  Economic 

Rev.  (London),  April,  1893. 
Review  of  Gomme's  "Village  Community,"  Pol.  Sci.  Qr.,  1891. 
Review  of  Andrew's  "  Old  English  Manor,"  Pol.  Sci.  Qr.,  1893. 
Bede.     Ecclesiastical  History  of  England.     Ed.  by  Stevenson,  Lon- 
don, 1838. 
BiRKBECK,  Wm.  Lloyd.     The  Distribution  of  Land  in  England,  1885. 

Caesar.     De  Bello  Gallico. 
CooTE,  Chas.  C.     The  Romans  of  Britain,  1878. 
Channing,  Edward.     Town  and  County  Gov't  in  the  English 
Colonies  of  N.  A.  J.  H.  U.  Studies,  1884. 
The  Genesis  of  the  Massachusetts  Towns,  1892. 


158 


Authors  Referred  To. 


Cunningham,  W.     The  Growth  of  English  Industry  and  Com- 
merce (Early  and  Middle  Ages),  1890. 
Domesday  Book. 
Elton,  Charles.     The  Origins  of  English  History,  1882. 

Review  of  Recherches  sur  quelques  problemes  d*histoire,  1886. 

Sketch    of    Fustel    de    Coulanges   in   English    Historical 

Review,  1890. 
Ellis,  Sir  Henry.     Introduction  to  Domesday  Book,  1833. 
Egleston,  Melville.     Land  System  of  New  England,  1880. 
Earle,  John.      Land  Charters  and    other  Saxonic    Documents, 

1888. 
Freeman,  Edward  A.     The  Norman  Conquest  (3d  ed.),  1877. 
Fustel  de  Coulanges.     Recherches  sur  quelques  problemes  d'his- 

toire.     Paris,  1885. 
L'AUeu  et  le  domaine  rural,  Paris,  1889. 
Origin  of  property  in  land  (Eng.  trans,  by  Mrs.  Ashley),  1891. 
Fisher,  Joseph.     Land-holding  in  England,  1875. 
GoMME,  G.  L.     The  Village  Community,  1890. 
Green,  J.  R.     The  Making  of  England  (Amer.  ed.),  1882. 
George,  Henry.     Progress  and  Poverty,  1880. 
Glasson,  E.      Les   Communaux   et  le   domaine   rural  a  I'dpoque 

franque,  1890. 
Gloucester  Cartulary.    Ed.  1867. 
Howard,  Geo.  E.     Introduction  to  the  Local  Const.  Hist,  of  the 

United  States,  Vol.  I,  1889. 
HosMER,  James  K.     A  Short  History  of  Anglo-Saxon  Freedom, 

1890. 
Hutchinson,  L.     Discussion  of  Tributarii  in  Qr.  Jour.  Economics, 

March,  1893. 
Kemble,  J.  M.     Saxons,  1849. 
Codex  Diplomaticus,  1839. 
KiRKUP,  Thomas.     History  of  Socialism,  1892. 


Authors  Referred  To. 


159 


KOVALEVSKY,  Maxime.     Tableau  des   origines   et  de  revolution 
famine  et  de  lapropriete  (Stockholm),  1890. 
Modern  Customs  and  Ancient  Laws  of  Russia,  1890. 
Laveleye,  Emile  de.     De  la  Propriete  et  de  ses  formes  primi- 

tives,  1874. 
Lex  Salica. 
Leges  Baiuv^tariorum. 
Leges  Alamannorum. 

Leges  Visigothorum.     For  this  and  the  three  preceding  collec- 
tions  the  Walter  edition  of  Corp.  Jur.  Germ.  Antiq.  (1824) 
has  been  used  as  a  rule. 
Marx,  Karl.     Capital.     Appleton  edition,  1889. 
Maine,  Sir  Henry.     Ancient  Law,  1861. 

Village  Communities  in  the  East  and  West,  187 1. 
The  Early  History  of  Institutions,  1847. 
Early  Law  and  Custom,  1883. 
Maitland,  F.  W.    Pleas  of  the  Crown  for  the  County  of  Gloucester, 

1884. 
Maurer,  Georg  von.     Einleitung  zur  Geschichte  der  Mark-,  Hof-, 

Dorf-,  und  Stadt-Verfassung,  1854. 
MORIER,  R.  B.  D.     System  of  Land  Tenure  in  Various  Countries 
(Cobden  Club),  1870. 
Local  Government  and  Taxation  (Cobden  Club),  1875. 
Mill,  John  Stuart.     Elements  of  Political  Economy. 

Review  of  Maine's  Vil.  Com.,  Fortnightly,  187 1,  Vol.  I. 
Montague,  Professor.     Review  of  Baden-Powell's  Land  System 

in  India,  Eng.  Hist.  Rev.,  April,  1893. 
Nasse,  Erwin.      Land  Community  in  the  Middle  Ages  (Cobden 

Club),  1 87 1. 
Osgood,  H.  L.     Review  of  Hosmer's  Anglo-Saxon  Freedom,  Pol. 

Sci.  Qr.,  March,  1891. 
Palgrave,  Francis.    English  Commonwealth,  1832. 


( 


i6o 


Authors  Referred  To. 


Pollock,  Sir  Frederick.    The  Land  Laws  (2nd  ed.),  1887. 
Rogers,  Thorold.     The  Economic  Interpretation  of  History,  1888. 
Ross,  Denman  W.     The  Mark  and  the  Manor,  1879. 

The  Early  History  of  Institutions  I-III,  1880. 

Theory  of  Primitive  Democracy  in  the  Alps,  1880. 

Land  holding  among  the  Eariy  Germans,  1883. 
Skene,  W.  F.     Celtic  Scotland,  1876. 
SCARTH,  H.  M.     Roman  Britain,  1883. 
SCROPE,  G.  PouLLET.     The  History  of  Manor  and  Ancient  Barony 

of  Castle  Combe,  1852. 
Seebohm,  Frederick.     The  English  Village  Community,  1883. 
Stubbs,  Wm.     Select  Charters  (3d  ed.),  1876. 

Constitutional  History  of  England,  1873. 
Tacitus.     Germania, 

Thorpe,  B.     Ancient  Laws  of  England,  1840. 
ViNOGRADOFF,  PAUL.     Villauiage  in  England,  1892. 


INDEX. 


Acre  strips,  64,  65. 

Adams,  C.  F.  129. 

Adams,  H.  B.  118,  119. 

Ager,  32-36. 

Ager  publicus,  34,  35. 

Aidan,  Bishop  of,  57. 

Alamanni,  laws  of,  44, 45, 47»  48« 

Allen,  W.  F.  38,  57,  71,  76,  ^T, 

82. 
Allmende^  43-47 >  i^o* 
Allotments,  8. 
Ancient  demesne,  77,  91- 
Andrews,  C.  M.  99. 
Anglo-Saxon  charters,  21,  53-55. 
Anglo-Saxon  Chronicle,   21,  55, 

68. 
Anglo-Saxon  law,  21,  6o, 
Aquinas,  St.  Thomas,  152. 
Arable  mark,  8,  64,  118. 
Ariovistus,  39. 
Aristotle,  133. 
Aryan,  4,  109. 
Ashley,  W.  J.  25,  71,  75,  78, 109, 

143- 
Augustine,  St.  56,  125. 

Barones  Regis,  69. 
Bavarian  law,  44. 
Bede,  54,  58,  103. 
Benefices,  102. 
Bible,  English,  125. 


Birkbeck,  W.  L.  72,  ^^,  78,  86. 
Black  Death,  65,  90. 
Boon-days^  65. 
Bordariiy  67,  68. 
Borough   English,  95. 
Bracton,  87. 
Britons,  105. 

Caed walla,  55. 
Caesar,  20,  29,  34,  39,  40. 
Castle  Combe,  80,  81. 
Ceorl,  88. 

Channing,  E.  116,  128,  130. 
Chatti,  32. 
Chiefs,  29,  30,  32. 
Cicero,  35. 
Col  onus  y  71,  loi. 
Commarchaniy  46. 
Commendation,  102. 
Common  fields,  64. 
Common  mark,  8,  15,  118. 
"Common  rights,"  97,  137. 
Commoner,  10,  134. 
Communal   character  of   Amer- 
ican settlements,  118,  129,  130, 

137- 
Cotmnunia^  43-47. 

Commutation,  75-78,  89, 

ConsorteSy  46. 

Continuity  of  ideas,  107. 

Coaration,  104. 


l62 


Index. 


Coote,  C.  C.  102. 

Cotariiy  68,  8i,  82. 

Coulanges,  Fustel  de,  25,  26,  35, 

40-43»  46-48,  50»  ^o^- 
Court  Baron,  83,  84,  94. 
Court  Customary,  83,  84. 
Cottiers,  65. 

Cunningham,  W.  40,  103. 
Customary  tenants,  82. 

Danish  influence,  105. 
Decumate  lands,  33. 
Demesne y  65,  67. 
Democracy  of  the  mark,  10,  82, 

i34»  137- 
Ditnidiae  Virgatae,  81. 

Domesday,  66-69,  78,  81,  82,  94, 

124. 

DominicuSy  83. 

Dominium  y  146. 

Earle,  J.  42,  53,  60,  82,  83,  84. 
Edict  of  Chilperic,  42. 
Edward  the  Confessor,  69. 
Egleston,  M.  132. 
Ellis,  H.  67,  68. 
Elton,  C.  82,  83,  97. 
Enclosure  Acts,  22,  64. 
Engels,  Fr.  146. 

Equality,  10,  17,  22,  80,  125,  137. 
Ethelbert,  21,  52,  53,  57,  71. 
Ethnology,  112. 
Evolution  of  property,  1 54. 

Fallei,  manor  of,  69. 
Fenni,  -t^^. 
Finis,  42. 
Firmy  75,  78. 


Fisher,  J.  150. 
Freemen,  10,  71,  78,  154. 
Freeman,  E.  A.  7,  14,  61. 
Frisian  Law,  44. 
Furlongs,  64. 

Geneat  land,  70. 

General  court,  127,  131,  138. 

George,  Henry,  7,  150. 

German  law,  40,  43-45. 

Germania,  33,  36. 

Germans  as  described  by  Caesar 

39- 
Germans  as  described  by  Tacitus, 

29. 

Glanville,  87. 

Glasson,  E.  27. 

Gomme,  G.  L.  6,  13,87, 104,  no. 

Green,  J.  R.  7,  10,  13. 

Halimote,  87,  94. 

Hallam,  60. 

Hamy  53. 

Hengist,  116,  123,  124, 

Hide,  55. 

Hilda,  Abbess,  54. 

Howard,  G.  E.  115,  118. 

Hundred  Rolls,  65. 

Hutchinson,  L.  54. 

Indian  village  community,  109. 
Individualism  of   the  mark,  17, 
107,  120. 

Ine,  7 1»  US- 
Intermixed  strips,  97,  98,  I04« 

Jubainville,  5. 
Judicial  combat,  44. 


Index. 


163 


Kemble,  J.  M.  i,  3»  9»  io»  "»  53- 

56,  59,  60,  135. 
Kinship,  12. 
Kovalevsky,  M.  5,  47-49- 

Labor  services  of  villains,  76, 90. 
L'AUeu  et  le  domain  rural,  27. 
Land-marks,  45. 
Land  .in  villainage,  67,  70. 
Land,  the  gift  of  nature,  151. 
Laveleye,  Emilede,  5,  9, 146,  i49 
Legal  evidence,  86,  88-92. 
Liber e  tenentesy  65,  66,  75. 
Liberiy  66,  80,  82. 
Life  principle  of  the  village  com- 
munity, 135. 

Maine,  Sir  H.  4,  9»  io»  "'  ^2,  13, 

14,  18,  104. 
Maitland,  F.  W.  83,  92,  94. 
Manorial  courts,  83,  84,  87,  92, 

93. 

Manorial  element  of  New  Eng- 
land settlements,  139. 

Marcay  42,  43. 

Marches,  42. 

Mark,  8,  40.  4i»  43»  45- 
Marriage  of  a  daughter,  65,  66. 

Marx,  Karl,  146. 
Massachusetts    Bay    Company, 

127,  13^- 
Maurer,  G.  von,  2,  3,  4»  8,  n,  21, 

24,  34,  35»  44,  45»  46,  5o»  59- 

Melbroc,  manor  of,  78. 

Military  character  of  Saxon  set- 
tlement, 84,  85,  86. 

Mill,  J.  S.  7,  i45»  U8,  150- 
Mill,  obligation  of  tenant  to  use 

lord's,  65,  66. 


Mir,  5,  1 10. 
Monday-men,  81,  82. 
Montague,  Professor,  109. 
Morier,  R.  B.  D.  8,  9,  12,  13. 
Mourt*s  relation,  119. 

Nasse,  E.  3,  4»  5»  ^  5- 

Nativiy  81. 

Natural  agents,  151,  152- 

"  Natural  rights,"  125,  150,  152. 

Norman   Conquest,    14,  18,  90, 

93- 
Norman  Influence,  106. 

Open  fields,  64,  70,  97,  98*  I04- 
Organized  colonization,  138. 
Osgood,  H.  L.  123. 

Oswy,  54. 

Ox,  sale  of  by  villain,  60. 


Palgrave,  Sir  F.  59,  60. 
Patria  potestas y  11. 
Patriarchal  system,  5, 12, 18, 148. 
Per  annosy  36,  37. 
Plymouth  settlement,  119-121. 
Pollock,  Sir  F.  60,  148. 
Population,  67,  68. 
Precariaey  65. 

Private  Property  among  the  Ger- 
mans, 35. 
Property  in  land   the   result  of 

robbery,  143-4- 
Proprietors,  133,  134- 

Rectitudines  Singularum  Per- 
sonarum,  70,  74,  7  5»  7  6- 

Remains,  62. 

Resumption  of  land  as  com- 
munal property,  142-144. 


^^ 


164 


Index. 


Ripuarian  law,  45,  47. 
Rogers,  Thorold,  153. 
Roman    Influence,   27,  90,   105, 

123,  125. 
Roman    law,    influence   of,    90, 

125. 
Roman  Villa,  83,  loi. 
Ross,  D.  W.  36,  48,  51. 
Rotuli  Hundredorum,  65,  'j'j, 

Salem  settlement,  120,  121. 
Salic  law,  44,  45,  96,  102. 
Saxon  Conquest,  102. 
Scarth,  H.  M.  103. 
Scrope,  G.  Poullet,  80. 
Seebohm,  F.  25,  63,  66,  70,  80, 

84,  loi,  104. 
Serfdom   among    the   Germans, 

Servi^  67,  68,  75,  81. 

Services  of  villains,  66. 

Shots,  64. 

Skene,  W.  F.  104. 

Sochtnanni^  67,  68,  75. 

Status  of  the  villain,  67,  88,  90. 

Stubbs,  W.  7,  1 01. 

Tacitus,  20,  29,  40,  58,  73,  86, 

120,  121,  122. 
Terminus^  41,  42, 


/ 


Terminology,  11 8, 

Thanes,  69. 

Theow,  71. 

Thorpe,  B.  41,  60. 

Thuringian  law,  44. 

Traditiones,  50. 

Tribal  conditions,  1 04-1 05, 

Tributarily  54. 

Tun,  53,  115,  119,  120,  121. 

Unearned  increment,  153. 

Villani,  65,  67,  68,  88. 
Village  Mark,  15,  118,  120. 
VUlata,  78. 
Vinogradoff,  Paul,  77,  84, 87, 88, 

90»  94»  95»  96,  98. 
Viollet,  5. 

Virgatae,  81. 

Virgate,  65,  67. 

Visigothic  law,  44. 

Week-work,  65,  76, 
Wergild,  58. 
Whitraed,  115. 
Winslow  Manor  Rolls,  65. 
Wyclif,  125. 

Yardlands,  65,  71. 


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provided  by  the  library  rules  or  by  special  arrangement  with 
the  Librarian  in  charge. 


• 

DATE  BORROWED 

DATE  DUE 

DATE  BORROWED 

DATE  DUE 

> 

\ 

I 

' 

C28(546)M28 

( 


dlid 


fid4 


Bryan 

The  nark  in  Europe  and  America • 


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M 


■^  u 


0\ 


I 

1 


r 


FES -4 


COLUMBIA  UNIVERSITY 


0032051107 


5 1994 


fvub^ 


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